We were delighted to see Justice Secretary Robert Buckland give up on the idea of a scaled probate fee. The current administration had been pushing for the thinly-disguised stealth tax since 2016, and was facing a mounting wave of opposition.
The top-end fee was £20,000 at first, although this later fell to £6,000 max for estates worth over £2 million. Quite why it should cost more to rubber stamp a larger estate left many probate lawyers gasping for an explanation.
Was This Fee Necessary to Properly Fund Our Courts?
That was the official government position, according to Herrington-Carmichael Solicitors on October 16, 2019 and we are confident they got it right. However, others wondered whether this was the thin end of the wedge and what else might we expect.
Perhaps this represents a recognition that making a fee-profit to support another part of government would be acting ‘ultra vires’ or beyond the authority of the state. We do know the Joint Committee on Statutory Instruments warned the Lord Chancellor along these lines in 2018.
However, Let’s Be Fair and Hear the Official Side
Parliament issued its own summary of the situation a week later in a Commons briefing paper. It referred to the proposal now withdrawn, and what it called “widespread comment and criticism”.
Then it went on to explain the government had statutory powers to charge enhanced fees, and consulted about the fee structure before proposing the new one. It conceded the government intended using the additional fee income “to subsidise other court costs”.
This proposal collapsed owing to insufficient time before the 2017 general election. However, the government was back with a more modest proposal in November 2018 with a draft non‑contentious probate fees order.
The then junior Justice Minister confirmed “all income raised would be spent on running the courts and tribunal service”. This proposal fell on the sword of a likely general election in December 2019 which is happening.
But Herrington-Carmichael Thinks the Fight is Not Yet Over
Herrington-Carmichael caution the probate disaster is not over yet. They say the government will raise it again in the annual assessment of charges in family and civil courts. They cite a Ministry of Justice spokesperson saying:
“Fees are necessary to properly fund our world-leading courts system, but we have listened carefully to concerns around changes to those charged for probate and will look at them again as part of a wider review to make sure all fees are fair and proportionate”.
This may be an attempt to counter thoughts the abandoned probate tax would have cross-subsidised other aspects of the tribunal and courts system. After all, why should grief-stricken people contribute to an annual £185 million kitty in their moment of travail when they have no other option?
Herrington-Carmichael Solicitors conclude “We therefore suspect this is not the end of the story and that a fee hike is still on the horizon, albeit perhaps not in the same magnitude” This sounds to us like a well-considered opinion.