Probate fees ‘outside the powers of the enabling Act’

Thursday, 20 April, 2017

A leading QC has confirmed that, in his opinion, the proposed Non-Contentious Probate Fees Order is ‘outside the powers of the enabling Act’.

STEP had expressed concern from the outset at the government’s proposals for reform of probate fees on grounds of fairness, practicality and legality.

The Parliamentary Joint Committee on Statutory Instruments (26th Report) had earlier expressed significant concerns, in particular that the government’s proposal to implement these measures via the Draft Non-Contentious Probate Fees Order 2017 may not be intra vires.

STEP has obtained a legal opinion from a leading QC in the field of Public Law, Richard Drabble QC, who confirms that in his view the key issue to be considered is whether or not the scale of fees proposed is authorised by s180 of the Anti-Social Behaviour, Crime and Policing Act 2014.

Mr Drabble confirms that in his opinion ‘the doubts expressed by the Committee are soundly based, and the proposed Order would be outside the powers of the enabling Act’.

Chief Executive George Hodgson said, 'Enacting proposals so clearly vulnerable to legal challenge will put many bereaved families and their professional advisors in a very difficult position.'

This legal opinion follows news that the House of Commons Second Delegated Legislation Committee rushed though the Non-Contentious Probate Fees Order 2017 yesterday at 8.55am, with no advance warning that it would be tabled at this meeting.

STEP had been checking both the Commons and the Lords site regularly and this was not flagged the day before:

Tues 18 April House of Commons: Future Business
Wed 19 April House of Commons: Business Today

It would appear the intention was to rush it through as soon as possible, ahead of the election.

The full report of the committee is available here: Hansard report. The committee approved the Order 10:2.

It is still listed for the House of Lords for Mon 24 April: Draft Non-Contentious Probate Fees Order 2017 (26th Report from the Joint Committee on Statutory Instruments.

Background information from STEP:

*UPDATE 21/04/2017 - The Ministry of Justice has conceded that the new fee regime has been abandoned due to lack of parliamentary time. See our update*

Ends

For further information please contact Joanna Pegum on +44 (0) 20 3752 3771, Email: joanna.pegum@step.org.

STEP is the global professional association for practitioners who specialise in family inheritance and succession planning. STEP works to improve public understanding of the issues families face in this area and promotes education and high professional standards among its members. STEP members help families plan for their futures, from drafting wills to issues surrounding international families, protection of the vulnerable, family businesses and philanthropic giving. Full STEP members, known as TEPs, are internationally recognised as experts in their field, with proven qualifications and experience.

Find out more at www.step.org.