Estate of Chomiak [2012] SASC 27.

The Registrar of Probates sought a direction from the Supreme Court of South Australia regarding the validity of an appointment of an executor in a will.  

The deceased had appointed “the Priest in charge for the time being of the Ukrainian Catholic Church” as executor. The principle issue for the Court’s consideration was whether the Priest in Charge “for the time being” was the Priest in charge at the time of the making of the will, the Priest in charge at the time of the deceased’s death, or a person who is in that office but only while that person holds the office?  

In determining how to construe the will, the Court put itself in the position of the willmaker in order to infer the willmaker’s intention from the words used by her in the will.  

The deceased was a founding member of the Ukrainian Catholic Church in 1963, and was familiar with Priests in charge from time to time, having been heavily involved in the Church until her death. Naturally, a willmaker cannot speculate who, on the date of his or her death, will actually hold a particular position, but a willmaker can desire the person who is the holder of that position to be appointed his or her executor.

The Court held that as the deceased did not personally name the Priest in charge at the time of the making of her will it was clear she intended to confer the position of executor on whomever held the office of the Priest in charge at the time of her death.

Comment - This case reflects the importance of being clear when appointing an executor of your will. Whilst the Court interpreted the will to mean the priest at the time of death, if the will had been drafted in a concise manner the resulting confusion, costs and delay would have been avoided.