As reported previously – see our news item Probate fees set to increase following reform – the government proposed an increase in probate fees, despite the concerns expressed by ICAEW and others in response to earlier consultation.
The proposal was to link the level of the fee with the size of the estate. The increase was to be introduced by statutory instrument (SI) rather than in legislation subject to the scrutiny of parliament. The parliamentary Joint Committee on Statutory Instruments, made up of MPs and peers, reviewed the proposals and concluded they were unlawful. They said pushing through the increases by SI was beyond the powers of the Lord Chancellor, as the increase was equivalent to putting a new tax in place because the fees were disproportionate to the service provided.
Despite this the proposal to increase the fees was slipped into parliamentary business on 19 April 2017 in the Non-Contentious Probate Fees Order 2017. After a 15-minute discussion the SI was approved, to be brought into effect before the dissolution of parliament for the general election.
But on 21 April 2017 it was announced that the increase in fees would not go ahead in May as planned, the reason given being that there was insufficient time for the legislation to fully go through parliament before the general election.
We wait to see if the proposals are revived after the general election.
Fees should only be charged by Government for actual services provided and at a level which matched the economic cost of an efficient relevant service. Fees should not be charged for access to services over which the Government itself has created a monopoly.
Government does not own the right to probate. It is merely one means of ensuring a register of the administration of estates and it gives HMRC early notification that it may be able to collect tax.
To charge materially above the fair cost of an efficient service amounts to taxation which has no place in the routine administration of our lives and should be resisted.