Members of the Lords will discuss draft regulations on the fee structure for applications for a grant of probate, in the House of Lords today (18 December).
The new regulations will introduce 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 chancellors’ power to remit or reduce a fee in exceptional circumstances.
The order has been laid despite strong opposition from charities and lawyers, with the Institute of Legacy Management (ILM) saying they are “extremely concerned” about this proposal and believe it could cost charities “£10m a year in lost legacy income” if it was to go ahead.
Lord Marks of Henley-on-Thames (Liberal Democrat) has 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.”
If this amendment is agreed by the House the draft order will be stopped and will not pass into law.
Lord Beecham (Labour) has 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”.
If agreed, the motion will not stop the order, but will provide 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.