Most solicitors who deal in wills and probate matters remember Chris Grayling’s time as the first non-lawyer lord chancellor for his decision in May 2013 to reject the Legal Services Board’s recommendation to make will-writing a reserved legal activity under the Legal Services Act 2007.
However, few wills and probate solicitors will realise that he was also the driving force behind the Anti-Social Behaviour, Crime and Policing Act 2014, nor know anything of its contents. I was also unfamiliar with that act until the government consulted on a new probate fee structure based on value of the deceased’s estate in 2016.
The government is currently using section 180 of the act to bring forward the Non-Contentious Probate (Fees) Order 2018. Under section 180, probate fees will rise from the current cost of £215 - or £155 if extracted by a solicitor - to a sliding scale of fees ranging from £250 to £6,000 depending on the value of the deceased’s estate.
Whenever questions arose on the topic of using section 180 to raise fees, responses were framed in the context of litigants paying for court services. No reference was made in the parliamentary records of section 180 ever being discussed in the context of probate fees.
By 2016, a consultation on proposals to reform probate fees was issued. The majority of the 853 respondents to the consultation disagreed with the proposals. Opponents, including the Law Society and other experts, argued, among other things, that the size of the fee should not exceed the cost of delivering the service.
The cost to the courts of granting probate does not change whether the estate is worth £50,000 or over £2 million and asking those who have larger estates to pay more is effectively a tax hike through the back door.
In 2017, the draft Non-Contentious Probate Fees Order 2017 was issued to implement the government’s proposals. Due to the general election in June 2017, there was not enough time for the order to complete its passage through parliament.
The order was criticised for its steep hike to probate fees and many hoped that that the proposals would remain in the long grass but, in November 2018, a new draft of the Non-Contentious Probate Fees Order 2018 was laid before parliament – albeit with lower fee increases to soften the blow.
The 2018 order passed through the House of Lords with a statement of regret, narrowly scraped through the secondary legislation scrutiny committee – although the committee said 'arguably amounts to a ‘stealth tax’ and, therefore, a misuse of the fee-levying power'- and is poised to reach the House of Commons at any time in the coming weeks.
It is the Law Society view that the 2018 order is a misuse of the fee-levying power under section 180. The steep increase proposed amounts to a tax rather than a genuine fee. An application for a grant of probate is far removed from any form of litigation. It is, in essence, a single sheet of paper recounting facts about the deceased person and produced with very little scrutiny by a small division of a government department.
The Law Society has organised a campaign to encourage members of the profession to contact their MP objecting to the proposals.
Perhaps as a precursor to the vote, the court service has pushed forward an announcement of changes that will take place to the physical grant of probate from the 4 March. The grant of probate receives a redesign which focuses on fraud and security issues with the introduction of a hologram, pre-printed signature and a hotline phone number to check validity.
The Labour party has signalled that it may oppose the government on the proposed increases. The Law Society stands against the 2018 order as it means the families of the recently deceased who apply for probate will end up paying a tax which covers the entire annual shortfall of the family and civil courts, and potentially other tribunals.
This is not what the provisions of the act were intended for. The bereaved are not litigants pursuing multi-million pound cases through the courts but ordinary people who need to obtain a grant of probate to deal with the affairs of their loved one and this is not the way to fund justice.
Ian Bond is Chair of The Law Society Wills & Equity Committee and Head of Trusts & Estates at Talbots Law