Ecclesiastical Courts and Wills

In the last few posts you might think that there is a lot of paper work required to obtain Probate or Letters of Administration. It is due to the fact that the Probate Division of the Supreme Courts of each state and territory are the modern successors to the courts of ecclesiastical jurisdiction. The Ecclesiastical Courts had exclusive jurisdiction over cases involving wills in England; and complete jurisdiction over testate and intestate succession to personal property until the 16th century and then, in competition with the courts of chancery, until the mid 19th Century

Until the 19th Century there was a very distinct division between the personalty (personal belongings), and realty (land) left by a person after they died. Land was administered by common law courts. Ecclesiastical courts administered the deceased’s personal belongings whether left by a Will or intestacy. Except for the Commonwealth period (1642-60) following the civil war and the overthrow of the monarchy the Ecclesiastical courts made grants of probate until the Probate Act established the Court of Probate in the mid 19th Century.

In England, William the Conqueror separated Ecclesiastical courts from the secular courts following the Norman Conquest in 1066. Probate was effectively split with the Ecclesiastical courts dealing with personalty including testamentary succession, while the secular courts retained succession to realty.

The Ecclesiastical courts took provision for personal goods due to the fact that these goods would normally be left to the Church to provide for used for the saying of Masses for the good of the deceased’s soul. If there was a will, the Ecclesiastical Court proved it and made sure the executor carried out their duties properly. If the person died intestate, the Ecclesiastical Court took charge of the intestate’s possessions and ordered the administration of the estate. Therefore without the ability to prove Wills Common law courts relied upon the Ecclesiastical Court to grant probate of the will or letters of administration, before settling any dispute.

In Australia the Courts have exercised the Probate and Construction functions as part of the common law established in New South Wales by statute under the first Charter of Justice of 1787. The later colonies were vested with similar jurisdiction.

In Australia, the Probate Division of the Supreme Courts of the states and territories decide on the validity and construction of Wills. The probate Court determines whether the deceased had the capacity to make the will and whether it reflects their wishes. The Supreme Court may give a grant of probate in common form (where there is no dispute about the will) or Solemn form (following litigation where there has been some contention about the Will.)

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