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Probate Fees: is Lord Chancellor acting within powers?

7 December 2018

The Draft Non-Contentious Probate (Fees) Order 2018 increases the fees that must be paid by the executors of a deceased person's estate when they apply for a grant of probate – the formal document which the executors need to administer the estate.  This is issued by the Probate Registry, which is part of the High Court of England Wales (see note 1 below).

The Order has been laid before Parliament by the Lord Chancellor. In a report published today, the Joint Committee on Statutory Instruments (JCSI) questions whether the Lord Chancellor is acting within his powers.

The Order must be approved in draft by both the House of Lords and the House of Commons before it can be made and can come into force.

JCSI's role is to consider the technical qualities of statutory instruments, not the policy implications.

What changes would the Order make?

The 2018 Order replaces the current fixed fee of £155 (if a solicitor is used to apply for probate) or £215 (if the executors apply personally) to an amount that varies with the value of the estate.  No fee would be payable for an estate worth less than £50,000.  But the executors would have to pay £6,000 if the estate is valued at £2 million or more – an increase of 3,770% from the existing fee of £155 where a solicitor applies for probate. (See notes 2 and 3 below).

Why does the Ministry of Justice want to raise the fees?

The new fees are expected to generate revenues of at least £145 million per annum in 2019-20, rising yearly in line with increases in estate fees.  The existing fees already cover the costs of running the Probate Registry.  The Ministry of Justice want to use the additional money to finance the operation of courts and tribunals dealing with litigation on issues unrelated to probate.

Is the Order ultra vires?

The Lord Chancellor has power under section 92 of the Courts Act 2003 to set the level of probate fees.  Section 180 of the Anti-Social Behaviour, Crime and Policing Act 2014 gives him power to charge “enhanced fees” - that is fees which exceed the actual cost of processing an application.

JCSI questions whether the Lord Chancellor would be acting within his powers by making the Order.  The report argues:

“Applying for probate is not to be compared with the commencement of proceedings. A person can choose whether to litigate and therefore whether to pay fees on issuing a claim ...  In contrast, executors have to obtain probate to allow them to administer an estate ...

“This is an administrative process, akin to the registration of a life event.  Nobody applying for an uncontested probate would think for a moment that they were engaging in litigation.  That makes it difficult for the Committee to accept that a power to charge enhanced court fees can be extended naturally to require probate fees to reflect the general costs of the court and tribunal system”.

“Fees” or taxes?

The JCSI doubts whether the amounts provided for in the 2018 Order are “fees” at all.  It considers that a fee must bear some relationship to the service for which it charged.  The charges set out in 2018 Order have instead all the characteristics of taxation.  The Committee regards them as a type of stamp duty on estates, although dressed up as “fees”.

Did Parliament expect the Lord Chancellor to use powers in this way?

The JCSI also questions whether Parliament anticipated, when it conferred power on the Lord Chancellor to set “enhanced” fees, that it would be exercised in the way set out in the 2018 Order.  The Committee could find no evidence of the Government having suggested to Parliament, during the debates on section 180 of the Anti-Social Behaviour, Crime and Policing Act 2014, that enhanced probate fees would be used to fund the operation of the courts and tribunal service generally, or to provide for such large and immediate increases in fees.

The Committee's report therefore draws the special attention of both Houses to the 2018 Order on the grounds that it appears:

  • to be ultra vires – outside the Lord Chancellor's powers; and
  • to make an unexpected use of those powers.
    It will now be up to the two Houses of Parliament whether to approve the Order in light of the JCSI's report.

Further information

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