Wednesday 27 June 2018
Update statement in relation to the probate service in Guernsey.
Sir,
I am pleased to provide an update in relation to the probate service in Guernsey, a subject which I know is of interest to a number of members of the States of Deliberation.
It is understood that Guernsey is one of the very few jurisdictions in the world where the legal jurisdiction enabling probate of personalty to be granted is vested in and administered in a body other than the civil courts. In Guernsey, it is administered by the Ecclesiastical Court, which is separate from, but subject to the supervision of, the Royal Court
The Ecclesiastical Court is thought to have been established in medieval times when problems with islanders bringing local cases before the then Bishop's Court at Coutances, led to the delegation of the ecclesiastical jurisdiction to Guernsey. As such, it predates the States of Deliberation and is at least as old as the Royal Court.
The Ecclesiastical Court is presided over by the Commissary of the Bishop of Winchester, who is the Dean of Guernsey. The Channel Islands were annexed to the Diocese of Winchester in 1568. Today, the Dean is assisted by the Registrar and the Deputy Registrar, both appointed by the Dean, with two additional staff who act as clerks to the Court.
I would like to make clear at this stage that the current Dean, The Very Reverend Tim Barker, has shown admirable personal commitment to improving transparency in relation to the Ecclesiastical Court - both its finances and its operations.
Historically, in England and Wales the proving of wills and related testamentary matters, subject to certain exceptions, came within the jurisdiction of various courts administered by the church. The Court of Probate Act 1857 reformed the traditional position and created a state controlled centralised system for probate which is now known as the Probate Service.
Probate in Jersey was originally granted and administered by its own Ecclesiastical Court; this practice ceased in 1949 when the functions were transferred to the Probate Division of the Royal Court of Jersey.
It is understood, then, that Guernsey is one of the very few jurisdictions in the world where probate is granted and administered by a religious body. I think everyone - including the Dean - accept that the continuation of this system is an anachronism. However, the Policy & Resources Committee is of the view that it is an anachronism which now, in 2018, needs to be resolved - and I am pleased that the Dean is proactively assisting the Policy & Resources Committee in doing that, and in a way that is respectful to the Ecclesiastical Court.
In March 2016, the former Treasury & Resources Department completed a review on the future funding arrangements of the Ecclesiastical Court. The report concluded that while there were no significant concerns regarding funding arrangements for the Court, it was recommended that a further review be carried out by the former Policy Council to ascertain whether it remained appropriate for the Ecclesiastical Court to issue Grants of Representation in relation to probate. Responsibility for the review was then transferred to the Policy & Resources Committee.
Consultees were positive about the Ecclesiastical Court's service in terms of the speed of granting probate and the friendly and helpful customer service. The general consensus was that the fees currently charged by the Ecclesiastical Court were reasonable.
So while the service and discretion of the current system are not under question, it simply is no longer considered appropriate for that system to be administered through an ecclesiastical court system.
In the consultation, there were some concerns expressed about the lack of transparency due to the probate function being administered by a non-government body (a situation which in no way reflects on either the Dean or those who are employed to administer the current system). But the time is now right for the States of Deliberation to provide for the transfer of the probate jurisdiction to the Royal Court.
The Policy & Resources Committee had intended to submit a policy letter on this matter for debate at this meeting of the States. However there has been significant correspondence with the Dean, and when we met again earlier this month, it was clear that the Dean and the Policy & Resources Committee had come to shared set of principles that, if adhered to, would enable modernisation of the probate service while maintaining the levels of service currently provided at reasonable cost.
I would like to put on record my appreciation of the Dean's constructive approach.
The Policy & Resources Committee will bring a policy letter to the States later this year that formally recommends that the probate jurisdiction be moved from the Ecclesiastical Court to the Royal Court. There are a number of ways in which this might work, and we will need to work with the Bailiff and the Ecclesiastical Court in order to assess the pros and cons of each of these in order to settle on the best way forward, and to ensure the resources and competences are in place in order to discharge that role.
However, the States will seek to contract with the current Registrar in order to enable the service itself to continue to be delivered in the same way, and from the same premises, initially for a period of three years, during which time a detailed plan will be developed for any further modernisation of the probate services - working with the Dean, the Royal Court, the Greffe, the Registrar and the probate service itself. Further dialogue is also required with service users, Alderney and Sark - all of whom have an interest in this matter.
This approach would not mean that the Registrar would become an employee of the States of Guernsey, and we would of course need to respect and protect the employment rights of the Registrar and the team that supports him.
Our aim, which may be ambitious, is for the jurisdiction to be changed from 1 January 2019. If it is, then the community in Guernsey will notice no difference in services, and no difference in cost, but the probate service will cease to be the function of an ecclesiastical court and instead will be a service provided on behalf of government through the Royal Court.
From a legislative point of view, a Projet de Loi would be required - and may be some secondary legislation too - in order to effect the transfer of the jurisdiction and deal with other related matters such as the charging of fees. Apart from a 1994 Law relating to the extent of the Ecclesiastical Court's jurisdiction in disputed probate cases (for reference, disputed cases are already the responsibility of the Royal Court), the Ecclesiastical Court's operation of probate is rooted in customary law.
The Dean and other parties have advised, rightly, that there is much work to be done on this, in order to turn these principles into a plan that can be implemented.
Further to this statement, the Policy & Resources Committee will establish a working party, with representatives of the Ecclesiastical Court and the Royal Court, in order to do precisely that. Significant amounts of surplus income from probate fees have been utilised over the years by the Deanery Fund LBG (previously the Deanery Discretionary Fund) for charitable purposes and community initiatives, but largely for the benefit of the Church of England in Guernsey and its community projects in the Bailiwick of Guernsey. That comment is not intended as a judgment, but simply to state a fact.
Recently formal arrangements for the use of surplus funds have been put in place, which is a further demonstration of the current Dean's commitment to transparency. Therefore in addition to the recommendation to move the probate jurisdiction to the Royal Court, it is also recommended that, in future, all surplus probate income accrues to General Revenue. A decision about allocating funding to the third sector is a separate one that would need to be considered in due course, but for example, the establishment of a social investment commission to support the third sector's work in the community is one potential area where some of that income could be deployed.
Whilst it is proposed that when the transfer is complete there should not be any hypothecation, if it does not prove possible to complete the requisite transfer of jurisdiction by 1st January 2019, it is proposed to consider through the working party how best to manage any surplus accruing after that date until arrangements are complete
Sir, the hardest step is the first one: making the policy choice. Having done that, we should be under no illusions that there is much work to implement that decision but it is important and only fair that everyone knows which direction they are headed in. Making a decision also means that we can start to plan and resource appropriately to effect the change.
To close, the Policy & Resources Committee is grateful for the support of the Dean, the Registrar and the Royal Court in progressing this work, and in particular to the Dean's constructive approach to achieving the goal of modernising Guernsey's probate service.
