As you might have seen in the press, the Government announced in March that they were planning to introduce large increases in probate fees from May 2017.
At the time there was a lot of discussion as to whether this was legal. The Joint Committee on Statutory Instruments reported that this increase would be tantamount to raising taxes without parliamentary approval.
The intention of the Ministry of Justice (MoJ) was to use a Statutory Instrument. This is an administrative power derived from an Act or from Parliament, giving specific ministers the ability to deal with simple matters without a vote. This covers such things as processes or, as in this case, fees for government services.
The question here was whether section 92 of the Courts Act 2003 and section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 allow the increase of what is meant to be a ‘fee’ in this way. It is also a question of what constitutes a fee and not a tax.
A reading of the Committee’s report indicated that the way the new charges were going to be structured made this a tax and not a fee. It also appears to conclude that the government increase of the fees was ultra vires, or outside the powers they have under the relevant legislation.
However this is all now academic, as the Government has announced that this “stealth death tax” – as it had been dubbed – will be scrapped. Legal commentators are wondering whether this means scrapped for good, or just scrapped until after the election in June.
James Trescothick-Martin is a Wills and Probate lawyer who specialises in probate and estate disputes. Please contact him for an initial confidential conversation.
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