News reports emerged early on Saturday morning (12 October 2019), to the relief of practitioners and others in the industry.
‘STEP welcomes the news that the government has decided to scrap the proposed increase in probate fees,’ STEP Technical Counsel Emily Deane TEP said. ‘This follows many months of work by STEP and many others to highlight the unfairness of the proposed increase, which amounted to a stealth tax on the bereaved. This at last brings an end to the uncertainty and worry that these proposals have caused to grieving families.’
The controversial proposals to charge higher fees emerged in November 2018. An estate of GBP300,001 – 500,000 would have had to pay GBP750, a 249 per cent increase from the current GBP215 flat fee, while the largest estates of GBP2 million and over, would have been charged as much as GBP6,000; an extraordinary 2,691 per cent rise.
The government’s reasoning behind the increase was that the probate system should fund improvements to the courts service.
The increase mooted in November 2018 was essentially a re-hash of a proposal first put forward in February 2016, which had suggested even higher fees. The Ministry of Justice (MoJ) had issued a consultation paper increasing fees for estates of over GBP50,000 with a banded fee structure depending on the estate value. Larger estates faced a 13,000 per cent rise to GBP20,000.
STEP strongly opposed the proposed fees on the basis that they would be completely disproportionate to the service provided by the probate court, and would effectively be a new tax on bereaved families (consultation paper pdf).
STEP raised concerns on the grounds of fairness, practicality and legality, in particular that the measures being introduced via the Draft Non-Contentious Probate Fees Order 2017 might be ultra vires, i.e. beyond the power of the order. We obtained a legal opinion from leading expert in public law, Richard Drabble QC, who confirmed that ‘the proposed Order would be outside the powers of the enabling Act’ (read blog).
Many other responses echoed STEP’s views, with over 97 per cent of respondents opposing the proposals.
The House of Commons Joint Committee on Statutory Instruments (SI) also questioned the legality of the proposals, given that the new ‘fees’ looked very like taxes.
Despite the opposition, the Probate Fees Order was pushed forward, and was only dropped when the then Prime Minister Theresa May called a snap election in April 2017. The proposals then re-emerged in November 2018 and while the headline charges were less extortionate than were previously proposed, the same concerns about process and fairness remained. It remains to be seen whether these proposals will re-emerge, for a third time, at some future point. If probate fee reform does rear its head again, we hope it will be done in a fairer and more transparent way, with greater consideration for bereaved families.