Before the Norman Conquest the clergy were so embedded in government they co-managed secular courts with judges. After William conquered Britain he separated the powers. However, the priests kept control of testamentary succession including freehold property and jurisdiction over wills.
The Norman conquerors introduced a feudal system that held all land belonged to the King. However, he could grant estates to aristocrats. Aristocrats could in turn grant plots to commoners. However, when feudal tenants died the plots returned to the aristocrats.
Drum Roll for Henry the XIII’s Statute of Wills
The Statute of Wills declared land was divisible into permanent portions. From 1540 onward all persons (except married minors, infants, idiots, and persons of unsound mind) could divide their feudal holdings and bequeath them to others. The Statute was silent on other goods of the deceased.
However the Clergy were Definitely Interested in the Goods
Religious beliefs at the time required that “at least part of the goods be devoted to the good of the deceased’s soul’. This was according to Eugene A Haertle’s ‘History of the Probate Court’ that appeared in the Maquette Law Review of Spring 1962.
Therefore any will made provision for saying of masses for a fee. If there was no will – which was treated as a ‘sin‘ – the Church would take its ‘rightful share’ before deciding what happened to the rest of the estate.
Thus Church Courts Assumed Jurisdiction over the Goods of Deceased
If there were a will, it was presented to the Bishop’s Court to prove it was genuine. The Court also made sure the executor performed their duties correctly. However, if there was no will, then the Bishop’s Court had exclusive power over the assets and the right “to make a suitable disposition of them”.
Moreover, That Was Not the End of the Executor’s Troubles
It’s one thing to have permission to distribute goods. However, having them in your hands is another. Executors often had to attend Common Law Courts to prove ownership. That was no sooner done before creditors, beneficiaries, and other next of kin formed a disorderly queue to claim their slice.
Only the Chancellor Had the Clout to Sort This Out
The Lord Chancellor’s Court was the only legal body with sufficient power to sort these conflicts out. However even it had to wait until the Ecclesiastical Court had agreed the will was genuine, and granted probate or letters of administration.
This impasse continued until 1857 when the probate and matrimonial jurisdiction of Ecclesiastical Courts was transferred to the Court of Probate, and the Divorce Court respectively.
In 1925, the government created a High Court of Justice comprising three divisions. These were the Chancery, the Kings Bench, and the Probate Divorce and Admiralty Division.
As Sir Alan Hebert, English humourist, novelist, playwright and law reform activist observed “The lumping together of these three topics is often a source of wonder or amusement. Jurisdiction over wrecks – wrecks of wills, marriages and ships,” who would have guessed …