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Lords debates probate fees regulations

19 December 2018

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Members of the Lords discussed draft regulations on the fee structure for applications for a grant of probate, in the House of Lords on Tuesday 18 December.

Draft Non-Contentious Probate (Fees) Order 2018

This statutory instrument introduces a new regime of fees for applications for a grant of probate, with a banded structure based on the value of the estate. Probate is the process in England and Wales by which the High Court confirms the authority of a person to administer the estate of a deceased person: non-contentious probate is where there is no dispute over the validity of the will or that person's right to act. 

It also increases the point at which fees for a grant of probate start from estates worth from £5,000 to £50,000, but retains the Lord Chancellor's power to remit or reduce a fee in exceptional circumstances.

Lord Marks of Henley-on-Thames (Liberal Democrat) proposed an amendment to the motion to approve the Order which is 'that this House declines to approve the draft Order, because it would be an abuse of the fee-levying power, since the proposed increased fees substantially exceed the cost involved in making grants of probate and would amount to a tax, which should only be introduced, if at all, by primary legislation.”

Members voted, with 90 in favour and 187 against, and so the motion to decline was not agreed.

If agreed, the motion to decline would have been approved by the House and the draft Order would have been stopped and would not pass into law.

Lord Beecham (Labour) also proposed a motion to regret against the Order, on the grounds that it will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Anti-social Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.”

186 members voted in favour of the motion, with 161 voting against, and so the motion to regret was agreed.

This motion will not stop the Order, but instead has provided an opportunity for the House to put on record its regret that the increase in fees is far greater than the actual cost of the service.

How do these draft instruments become law?

These regulations were presented as a Statutory Instrument (SI). An Act will often contain a broad framework and statutory instruments are used to provide the necessary detail that would be too complex to include in the Act itself. They are also easier to change than an Act – for example to upgrade the rate of payment each year or amend the necessary forms in the light of experience.

This instrument was subject to the affirmative procedure, that means it must be debated in both Houses before it can be made law. A vote can be taken on them if the House wishes but is not essential.

Further information

Image: House of Lords 2018 / Photography by Roger Harris