Probate fees: Planned increase scrapped ahead of election

21st April 2017

Controversial plans to raise probate fees are to be scrapped ahead of the snap general election announced this week by the Prime Minister Theresa May.

The Ministry of Justice have said there is now not enough time for the legislation to go through Parliament. There are also doubts as to whether the new fee structure would be brought back if the Prime Minister was re-elected.

Earlier this month, a committee of MPs and peers questioned whether the changes were legal, adding that the new charges “appear to have the hallmarks of taxes rather than fees”.

The committee also questioned whether Justice Secretary Liz Truss, who has proposed the changes, could use the provisions of the Anti-social Behaviour, Crime and Policing Act 2014 to bring in the rise without parliamentary approval. The report said: “The committee is doubtful whether section 180 of the 2014 Act does in express words entrust the Lord Chancellor [Ms Truss] with the power to impose charges of the magnitude proposed by the draft order. It is an important constitutional principle that there is no taxation without the consent of Parliament, which must be embodied in statute and expressed in clear terms.”

The proposed increase in probate fees had been criticised by many from the outset, led by STEP. In collaboration with the Law Society of England & Wales, they obtained a legal opinion on whether the proposed Non-Contentious Probate Fees Order 2017 would be intra vires under the terms of the empowering legislation. The legal opinion stated that ‘the doubts expressed by the SI Committee are soundly based, and the proposed order would be outside the powers of the enabling act’.

For now many can breathe a sigh of relief however it is as yet unknown whether these proposals will be implemented after the general elections. If you have any outstanding probate applications to be made our advice would still be to try and get them filed as soon as possible.