The Ecclesiastical Court

Transfer of probate jurisdiction to the Royal Court

On 3 June 2020, The States of Deliberation passed a resolution approving the transfer of jurisdiction for the grant of Probate and Letters of Administration to the Royal Court. It is not known when that transfer will take effect as legislation has to be drafted and approved, and the necessary practical arrangements made. Until the date of transfer, the Ecclesiastical Court retains jurisdiction and it will continue to function as usual

The duties of the Ecclesiastical Court are held and performed independently to that of the Royal Court. If you wish to find out more about the Ecclesiastical Court and it's functions, please follow the below link to their website. Please note the Ecclesiastical Court is located as Bureau des Connétables, Lefebvre Street, St Peter Port; NOT within the Royal Court building.

www.guernseyprobate.gg/

History
The Ecclesiastical Court's origins probably go back beyond surviving written records. It was certainly in existence in the 13th Century and one can fairly safely assume, although not prove, that it existed long before that. It thus pre-dates the States and probably also the Royal Court. At the time of the conquest of England by our Norman ancestors, the Channel Islands formed part of the Diocese of Coutances in Normandy, so the Court was under that Bishop's jurisdiction.

Thirteenth century Guernsey was of course a small part of the Norman Empire, which then included Normandy and England, and was Roman Catholic - under the civil and military jurisdiction of the Duke, and the ecclesiastical jurisdiction of the Pope and his Bishops. When King John of England lost Normandy - but not the Channel Islands - to the King of France in 1204, our secular institutions started to develop separately from those in France, but our ecclesiastical government was little affected. Since England and France both remained Roman Catholic, it was not in the least anomalous or contradictory that the Islands were a possession of the English Crown, but within the Diocese of Coutances, which was now territorially for the greater part under the King of France.

The Bishop of Coutances appointed our Deans and expected them to answer to him in his Diocesan Court in Normandy, but, like the Bishops in England, he in his turn answered to the Pope in Rome. In those times, the Bishop of Coutances granted a large measure of autonomy to the Ecclesiastical Courts in the Islands simply because of the practical difficulty of communication. That independence has largely been retained to this day: a rural Dean of equivalent rank in England or Normandy never had the power and freedom that our Dean has always enjoyed.

This state of affairs lasted for another three and a half centuries until the reign of Queen Elizabeth I, during which the Islands were finally annexed by an Order in Council to the Diocese of Winchester. It is from that Law that the present-day Deans still derive their authority. Note that the Islands were annexed to, not subsumed by, the Diocese of Winchester. Although undoubtedly within the jurisdiction of the Bishop of Winchester, the Islands do not form a part of his Diocese.

Thenceforth, the Deans in the Islands were appointed by the English Crown. But Elizabeth's reign also marked the beginning of the only period in its history when the functions of the Ecclesiastical Court were suspended. Calvinism had taken firm root in the Islands, and Calvinist church government had no place for the Court, whose functions were suspended and only resumed in 1662 with the restoration of King Charles II.

The duties and functions of the Court prior to the late nineteenth century were much more varied than today. It dealt, among other things, with:

•     the licensing of school masters;
•     the legal separation of spouses;
•     the proving of Wills and the issuing of Letters of Administration in deceased Estates;
•     the granting of Faculties for alterations to consecrated land and buildings;
•     the issuing of marriage licences for marriages without Banns; and,
•     a whole range of ecclesiastical offences such as drunkenness in church, idolatry, blasphemy, failure to attend church, sorcery, heresy, adultery and so forth, for which it had the power to impose quite severe punishments.

The modern Court has of course lost many of these functions: the States now deals with our schools; the Royal Court has jurisdiction over the dissolution of marriage; and people are no longer punished for the old offences of sorcery and the like.

Current Functions
But the Court has managed to retain three of the functions which it has always had, namely: the proving of Wills and the issuing of Letters of Administration in deceased Estates; the granting of marriage licences; and, the issuing of faculties - and in this respect it is now unique in the world. In France the Courts disappeared altogether with the Revolution in 1789; in England, though they still exist, their probate functions were incorporated into the civil court system in the 1850s, and the same happened in Jersey 60 or so years ago.

It is with the proving of Wills and the granting of Letters of Administration in deceased Estates that most of the modern Court's work is now concerned. Several hundred such Grants - known generically as Grants of Representation - are issued each year. The Ecclesiastical Court, like the Royal Court, is a court of record, which means that all Grants of Representation must not only be prepared for issue in original form to the applicants, but also that they must be copied and indexed for the Court's own records and for the public record held at the Guernsey Greffe.

Court sittings are held each Friday (except Good Friday and the Friday closest to Christmas Day) and are usually presided over by the Dean or, in his absence, by one of several Commissaries-Delegates. The Dean acts under a Commission from the Bishop of Winchester, so when presiding at Court he is properly styled "Commissary". The Dean is always also the Rector of one of the ten ancient Parishes of Guernsey, which is a Crown appointment. The Commissaries-Delegate, appointed by the Dean, are the two Vice-Deans (senior clergy who are incumbents of other Guernsey Parishes, though not necessarily the ancient ones), and one or two retired members of the clergy. Although the Court has now (since 1994) lost its jurisdiction to hear disputed probate cases, it can still adjudicate upon contested faculty applications. If necessary the Dean can convene a Court which includes one or more of the other clergy sitting with him, and Advocates of the Royal Court representing the opposing parties can be sworn as Proctors.

The Court is run on a daily basis by a Registrar (or Greffier), assisted by three staff. The Registrar is appointed by the Dean and in modern times has usually been an Advocate of the Royal Court. The current Registrar has held this post since 1989. The Registrar also assists the Dean on a variety of issues, as well as with formulating policy and guidance notes for the clergy on matters such as the faculty jurisdiction.

Why should we keep the Court? A committee of the States investigated this question between 1979 and 1985, and its report accepted that the Court was doing a job which had to be done by somebody; it was doing that job in an efficient and cost-effective way; and it concluded that "the fact that the system is an anachronism is not of itself a reason for change".