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Government plans to press ahead with probate fee increase

Government plans to press ahead with probate fee increase despite concerns raised by the Commons committee

The Parliamentary Joint Committee on Statutory Instruments (SI Committee) has recently reviewed the Ministry of Justice's proposed increase of fees for non-contentious probate applications in England and Wales. The SI Committee expressed the view that the fees are a tax, and not fees, and that same committee is calling for full parliamentary scrutiny of the draft order.

The new fee scale proposed by the Government raises application fees from a flat charge of either £155 (for Solicitor applications) or £215 (for personal applications) to a banded system, where the fee payable is determined by the value of the deceased’s estate. Under the proposed system, there will be a maximum charge of £20,000 for estates worth over £2 million.

Despite there having been virtually unanimous opposition to the proposals at the consultation stage, the Ministry of Justice has confirmed its aim to introduce the probate fee scales in May 2017 by means of a statutory instrument (SI).

It is the SI which was recently examined by the Joint Committee on Statutory Instruments. The SI Committee says the new charges are 'a tax' rather than fees, being far in excess of the amount necessary to cover the cost of the service.

The Ministry of Justice admits that the probate registry is already covering its costs however it has also argued that there is no restriction on the power afforded to them in statute, which requires a fee to be directly related to the cost of the service.

This is an argument that has been rejected by the SI Committee.

The government must now decide whether or not to proceed with the SI. The SI Committee does not have the power to block it, but can draw parliament's attention to its failings and invite full parliamentary scrutiny, which in fact, it has already done.

The BBC reports that despite the findings of the SI Committee, a Ministry of Justice spokesman has said that the Government’s plans "remain unchanged".

For more information - or to make an appointment please email sally.cook@clough-willis.co.uk or call 0161 764 5266.