We have previously commented on the plans from the Government to overhaul the charging bands relating to how probate fees are paid. The last couple of days have proved to be interesting times for the proposals, as the joint committee on statutory instruments has suggested the changes many not be legally enforceable.

The report from the joint committee on statutory instruments:

“Draws the special attention of both Houses to this draft order on the grounds that, if it is approved and made, there will be a doubt whether it is ‘intra vires’, and that it would, in any event, make an unexpected use of the power conferred by the enabling act.”

“The Committee is doubtful whether section 180 of the Antisocial Behaviour, Crime and Policing Act 2014 does in express words entrust the Lord Chancellor with the power to impose charges of the magnitude proposed by the draft Order and for the purposes connected with her department specified in the explanatory memorandum.”

The core argument is focused on whether the probate fee rise would be for the aim of funding services not connected with the executor’s direct requirements. According to the MoJ (Ministry of Justice), higher probate fees are required to fund the courts and tribunals service. If the fees were to be used for other purposes than the direct facilitation of probate, such as funding litigation services, the change would be seen as a form of taxation that would require the consent of Parliament.

The change to the probate system was authorised by the justice secretary and Lord Chancellor Liz Truss, in February this year. The question that is being asked now is whether she had the powers to authorise such a change. At the time of writing the Ministry of Justice (MoJ) has stated it intends to push ahead with the changes which it hopes will raise an extra £300m a year. We shall watch with interest.

Find out more information about Wills & Probate and see our article on probate fees & expenses.

Edward Pennington – rhw Solicitors LLP

Call rhw solicitors in Guildford on 01483 302000

Email: edward.pennington@rhw.co.uk