Could the increase in probate fees be unlawful?

The impending increase in probate fees were thrown into doubt earlier this week after they were branded ‘unlawful’ by the parliamentary committee on statutory instruments. 

Their highly critical report stated that the rises have the “hallmarks of taxes rather than fees”, given that payments would increase from £155 to £20,000 for larger estates. The report said that the changes could breach the constitutional principle that there should be no taxation without the consent of parliament. 

In its report, the committee questioned whether “the lord chancellor may use a power to prescribe non-contentious probate fees for the purpose of funding services (the courts) which executors do not seek to use”. 

These findings will add pressure to the Lord Chancellor to review the charges again and may mean that the fees could be delayed if not scrapped. 

However even in light of this, the Ministry of Justice said: “Our plans to introduce new probate fees remain unchanged. We will introduce a fairer system, meaning over half of estates pay nothing and over 90 per cent pay less than £1,000. They will be considered in parliament after Easter, and come into force as soon as possible.”

The proposed fees were strongly opposed and Kings Court Trust were one of 853 firms or individuals to formally respond to the consultation. We voiced strong opposition to the plans, citing the fact that the proposed fees would potentially cause significant financial difficulties for families already having to deal with the loss of a loved one.  Despite overwhelming opposition, the Government has approved the changes to the fee structure and these are expected to come into action in May 2017. You can read our views on this development here.

Tom Curran, CEO at estate administration specialists Kings Court Trust said: “We hope that the Lord Chancellor listens to this report and reviews the proposed fee changes.

We feel that the introduction of these new fees will result in an increased financial burden for ordinary families at a time of great distress.  The work required to issue the Grant of Probate is exactly the same whether an estate is valued at £200,000 or £2,000,000.  Therefore, we doubt whether the Ministry of Justice could argue that this proposal constitutes ‘access to justice’ as detailed within the Legal Services Act.

We are committed to supporting families dealing with the loss of a loved one and will be watching these developments with interest.  Whatever the outcome, we will aim to minimise the financial impact that any fee increase will have on families who need to apply for probate.”