In the Estate of CHOMIAK - [2012] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of CHOMIAK
[2012] SASC 27
Judgment of The Honourable Justice Gray
29 February 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - IN GENERAL
Referral by Registrar of Probates seeking a direction as to whether the appointment of an executor in the deceased's will is a valid appointment - the deceased appointed "the priest in charge for the time being of the Ukrainian Catholic Church at Wayville" as her sole executor - whether such an appointment a valid appointment - whether appointment referring to priest in charge at the time of the will or at the date of death.
Consideration of the so-called principle of a "shifting executorship".
Held: Order made that the appointment is valid - order for grant of probate.
Re Will of Were (1886) 12 VLR 271; Perrin v Morgan [1943] AC 399; Re Anketell (1888) 14 VLR 111; Re Bone (1895) 1 ALR 132; Re Khan [1947] QWN 26; Re Milton [1999] VSC 417; In the Will of Bottoms (Unreported, Supreme Court of Victoria, Phillips J, 26 July 1985); In the Goods of Haynes (1842) 3 Curtis 75; In the Will of Laffan (1933) 50 WN (NSW) 227; In the Estate of Yearwood (1982) 30 SASR 169; In the Estate of Jones (1927) 43 T L Rep 324; In re Laffan and Downes’ Contract [1897] 1 IR 469; Healy v Real Estate Institute of Western Australia (Inc) [2004] WASC 163; Ellison v Thomas (1862) 2 Dr & 8 Sm 111; Addey v Woolley (1819) 8 Taunt 691; Re Padbury, deceased; Home of Peace for the Dying and Incurable v Solicitor-General (1908) 7 CLR 680; Charter v Charter (1874) LR 7 HL 364; Allgood v Blake (1873) LR 8 Ex 160; Boyes v Cook (1880) 14 Ch D 53; Fell v Fell (1922) 31 CLR 268; Nock v Austin (1918) 25 CLR 519; Guardhouse v Blackburn (1866) LR 1 P & D 109; CF v TCML [1983] 1 NSWLR 138; Moss v Dunlop (1859) Johns 490, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"for the time being"

In the Estate of CHOMIAK
[2012] SASC 27
Testamentary Causes Jurisdiction
GRAY J:
Introduction

This is a referral from the Registrar of Probates, seeking a direction as to whether the appointment of an executor in a will is a valid appointment.
The deceased, Anna Chomiak, died on 7 June 2010, aged 93 years. By her will executed on 4 June 2002, the deceased appointed “the Priest in Charge for the time being of the Ukrainian Catholic Church at Wayville” as the sole executor of her will. The will provides a legacy to the Roman Catholic Archbishop of Adelaide, again “for the time being”, with the residue for “the Trustees of the Ukrainian Catholic Church in Australia, Eparchy of St Peter and Paul of Melbourne for the use and purposes of the Ukrainian Catholic Church at Wayville aforesaid”.
The will was prepared by Lesia Iwaniw, a solicitor. The Church of the Protection of the Mother of God would appear to be the only Ukrainian Catholic Church in Wayville. Taras Gorpynyak, the applicant, who was the priest in charge of the Church at the date of the deceased’s death, has applied for probate in the ordinary way. The applicant was not the priest in charge at the date of the execution of the will.
The Registrar identified an issue in respect of the meaning and effect of the words “for the time being” in the appointment clause. Specifically, he identified that those words could refer to the person in the office at the date of the will; the person in the office at the date of the testator’s death; or, a person who is in the office but only while that person holds the office.
The Registrar referred to a principle that a “shifting executorship” is generally void. Accordingly, if I determine that the appointment is not a valid appointment, the appropriate grant is one of letters of administration with the will annexed, rather than a grant of probate.
The principal issue before the Court is whether the appointment of the priest in charge “for the time being” of the Church means the priest in charge of the Church at the date of the will or at the date of death of the testator. A subsidiary question arising is whether there is any principle of law called a “shifting executorship” and if there is such a principle, how does a court determine its effect upon an appointment. Before turning to a consideration of the issues, it is convenient to set out in full the relevant terms of the will:
THIS IS THE LAST WILL AND TESTAMENT of me ANNA CHOMIAK of … Brompton in the State of South Australia Widow.
1. I REVOKE all wills and testamentary dispositions formerly made by me.
2. I APPOINT the Priest in Charge for the time being of the Ukrainian Catholic Church at Wayville in the said State (hereinafter referred to as “my trustee”) to be the sole executor and trustee of this my will.
3. I GIVE AND BEQUEATH to the Roman Catholic Archbishop of Adelaide for the time being (or if there be no Archbishop, to the person then administering the Roman Catholic Archdiocese of Adelaide) the sum of TEN THOUSAND DOLLARS ($10, 000.00) for such purposes as he shall determine AND I DECLARE that the receipt of the proper officer of the Catholic Church Office shall be a full and sufficient discharge to my trustee for the said legacy nor shall my trustee be bound to see to the application thereof.
4. I GIVE DEVISE AND BEQUEATH the rest and residue of my estate both real and personal of whatsoever kind and wheresoever situate unto my trustee UPON TRUST to sell call in and convert into money all such parts thereof as shall not consist of money with power in my trustee absolute discretion to postpone such sale calling in and conversion for so long as my trustee shall think fit without being responsible for loss and out of the proceeds thereof and my ready monies to pay all my just debts funeral and testamentary expenses and all duties payable in respect of my estate or as a consequence of my death so that there shall be no subsequent apportionment thereof between beneficiaries and to hold the balance then remaining (hereinafter called “my residuary estate”) UPON TRUST for the Trustees of the Ukrainian Catholic Church in Australia, Eparchy of St Peter and Paul of Melbourne for the use and purposes of the Ukrainian Catholic Church at Wayville aforesaid AND I DECLARE that the receipt of the proper officer of the Trustees of the Ukrainian Catholic Church in Australia, Eparchy of St Peter and Paul of Melbourne shall be a full and sufficient discharge to my trustee for the same nor shall my trustee be bound to see the application there of.
Shifting Executorship
It is convenient to address first the so-called principle of a “shifting executorship”. In order to properly address the status of this principle, it is necessary to consider its suggested genesis.
A principle called “shifting executorship” has been referred to in authorities which mainly appear to be Australian. For reasons that follow, in my view, the so-called principle is just a manifestation of the approach taken to particular circumstances within the rubric of uncertain appointments, where in the circumstances the appointment is too uncertain and consequently void.
Authorities which support the so-called principle appear to find their origin in the decision of Molesworth J in the Supreme Court of Victoria in Re Will of Were.[1] This decision is a convenient starting point. The testator appointed the manager “for the time being” of a company as his executor. The manager at the date of the will and the date of the death of the testator was the same person. Molesworth J held that the appointment was void and in so concluding, observed.[2]
… As the question was presented to me, I thought it was as if the testator might appoint such person as should be manager of the company, for the time being, his executor, which I doubted; but I now see that what he really intended was that the manager, for the time being, might from time to time be executor, which I think cannot legally be. Other interests besides the wishes of the testator are to be regarded, and other people creditors and purchasers are not to be confused by a shifting executorship. I, with regret, refuse the application; granting it would not effectuate the testator’s intentions. Such an order would make the applicant a continuing executor, though immediately after the company changed its manager.
[Emphasis added.]
[1] Re Will of Were (1886) 12 VLR 271.
[2] Re Will of Were (1886) 12 VLR 271, 272.
Counsel for the applicant in the within proceeding submitted that the decision in Re Were is of no assistance to this Court and should not be followed. Counsel provided the following four reasons:
-Molesworth J seemed to have accepted the principle at face value, ignoring the futurity in respect of the proposed appointment;
-Molesworth J said that he took into account the intentions of the testator but then said, ignoring those intentions, that other persons might be confused by a shifting executorship;
-The reasons were written prior to the universally accepted principle that a Court must ascertain the intentions of a testator and give effect, if possible, to that declared intention;[3] and
-In referring to confusion with creditors and the like, Molesworth J overlooked the fact that if he did grant probate to the appointed executor, that fact would appear on the grant and that is the document which would have been produced to creditors in the administration of the estate.
[3] Perrin v Morgan [1943] AC 399.
In 1888, two years following Re Were, Webb J in the Supreme Court of Victoria decided Re Anketell.[4] The testator there had appointed the trustees “for the time being” of a settlement, executors of his will and devised and bequeathed his property to them upon the same trusts as the settlement. Counsel drew the Court’s attention to the decision in Re Were. Webb J began his observations with reference to that decision:[5]
Yes, because that would make a shifting executorship, which is not allowed. His Honor there also refused to grant probate absolutely to the then manager, because he thought that was not the intention of the testator in that case; and no doubt there the intention was to make the company practically and not its manager, executor. This case is, however, distinguishable from that. There the manager for the time being had no other interest in the estate, and no other duties to perform in connection with it. Here the testator evidently wished that the persons who had the management of his trust estate should also have the management of his general estate. That intention will be best effectuated by granting probate to these two trustees absolutely.
[4] Re Anketell (1888) 14 VLR 111.
[5] Re Anketell (1888) 14 VLR 111, 112.
It is to be recalled that Molesworth J in Re Were found that the testator in that case intended that the nominated executor should hold office. Webb J found that the testator in the case before him had such intentions.
Re Bone[6] is a decision of Hood J in the Supreme Court of Victoria. By will dated 8 April 1895, the testator devised and bequeathed all of his real property, subject to a small legacy, to the “President and Secretary for the time being of the Old Colonists’ Association of Victoria”, in trust for the Association, and appointed such president and secretary “for the time being” the executors of the will, expressing a wish that they should erect certain cottages for the benefit of the Association. The applicants were the president and secretary respectively both at the date of the execution of the will and at the date of the death of the deceased. Hood J considered that the testator intended to appoint persons to the office at his death.[7]
I feel some doubt in this matter, but I have come to the conclusion that the testator intended to appoint as his executors the person who might at the time of his death be President and Secretary of the Old Colonists’ Association. If that be so, it is the same as if these persons had been named in his will as executors, and I therefore grant probate to them.
[6] Re Bone (1895) 1 ALR 132.
[7] Re Bone (1895) 1 ALR 132, 132-133.
It is noteworthy that there does not appear to have been any argument before the Court in the above three decisions, nor any consideration in those decisions, as to how the words “for the time being” should be construed. Macrossan CJ in Re Khan[8] considered this issue. I now turn to that decision.
[8] Re Khan [1947] QWN 26.
Re Khan[9] is a decision of Macrossan CJ of the Supreme Court of Queensland. Upran Khan died in August 1946, leaving a will dated 29 May 1944. The will provided as follows:
I give devise and bequeath the whole of my estate both real and personal and of whatsoever nature and wheresoever situate to the Mohammedan church to which I belong situated at Logan Road near the crematorium to be held in trust by the secretary of the church for the church and to be used for the benefit of the church as directed by the committee. I intend leaving fifty pounds with the secretary of the said church before my death to be spent on the day of my death in the manner I will direct him. I appoint the secretary for the time being of the said Mohammedan church at Logan Road near the crematorium executor and trustee of this my will.
[Emphasis added.]
[9] Re Khan [1947] QWN 26.
At the date of the testator’s death, the secretary was Mr Kans. Subsequently, on 6 October 1946, Mr Rane and Mr Deen were, in accordance with the practice of the Church, appointed joint secretaries in place of Mr Kans. It is not clear from the report of the decision whether Mr Kans or some other person was secretary at the time of the execution of the will in May 1944. Mr Rane and Mr Deen applied for a grant of probate. On the one hand it was argued that the person who was secretary at the date of the deceased’s death was the person to whom probate should be granted. On the other, it was contended by the applicants that the person or persons holding the office of secretary at the time of the application for probate was made were the proper persons to receive the grant. Specifically, as the headnote records, it was argued that:[10]
… The general sense of the phrase “for the time being” is that of a time indefinite and it refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time. Ellison v Thomas ([1862] 2 Dr & Sm 111; 62 ER 563, at p 565), Coles v Pack ([1869] 39 LJCP 63 at p 66). Such an appointment as this is analogous to those cases in which it has been held that rights conferred on “officers for the time being” are rights conferred on officers who are such when any action is commenced either by or against them, not those who were such when the right arose. Addey v Wooley ([1819] 8 Taunt 691; 129 ER 552, at p 553).
[10] Re Khan [1947] QWN 26.
Macrossan CJ granted probate to the applicants, limited for so long as they should hold the office of secretary of the corporation of the Mohammedan Mosque.
Re Milton[11] is a decision of O’Bryan J in the Supreme Court of Victoria. His Honour referred to the authorities I have set out above, but concluded that that the two persons intended by the testator to be executors were identifiable as at the date of his death. His Honour concluded that the deceased did not intend a shifting executorship. The appointment clause was as follows:
I appoint the two most senior partners at the time of my death of the firm of Messrs. Sly and Weigall, Solicitors of Level 25, 385 Bourke Street, Melbourne in the said State executors of my will and trustees of my estate And I Direct that the expression 'my trustees' wherever hereinafter appearing shall be deemed to mean and include the person or persons for the time being acting as trustee or trustees of my will.
In arriving at this conclusion, his Honour reasoned as follows:[12]
The Registrar of Probates served a requisition upon the plaintiffs requiring evidence of the fact that Sly and Weigall and Deacons Graham and James are one and the same firms by amalgamation or otherwise. There is a subsidiary problem whether the appointment clause leaves the identity of the executors uncertain.
The law says that an appointment of executors is invalid if the testator intended to constitute a "shifting executorship" as happened In the Will of Jonathan Binns Were, deceased (1886) Vol. XII VLR 271. The testator appointed "the manager for the time being" of a company and the court refused probate to the person who at the death of the testator was the manager of the company on the ground that a "shifting executorship" was created. See also Re Anketell (1888) Vol. XIV VLR 111; Re Bone (1895) 1 ALR 132. More recently, in Re Yearwood (1982) 30 SASR 169 Legoe, J. held that no effective appointment of an executor was made by a testatrix because the will appointed the partners at the date of her death in a named firm of solicitors "or the firm which at that date has succeeded to and carried on its practice." Before the death of the testatrix there was a dissolution of the partnership of the firm of solicitors and the partners formed three new firms none of which succeeded to and carried on the practice of the named firm of solicitors.
The decision in Yearwood is distinguishable from the present case as the evidence now reveals that the name of the firm Sly and Weigall was changed to Deacons Graham and James on or about 15 September 1995, more than three years before the deceased died but, presumably, to his knowledge, and the plaintiffs were the two senior partners of all the partners of Sly and Weigall at the date of the deceased's death. The business name Sly and Weigall is still registered and the plaintiffs are registered proprietors of the firm Sly and Weigall
Further, the appointment clause in the will makes it clear that the deceased did not intend a "shifting executorship" for he used the words "the two most senior partners at the time of my death". The identity of the two most senor [sic] partners of Deacons Graham and James, formerly known as Sly and Weigall, was known at the date the deceased died.
[11] Re Milton [1999] VSC 417.
[12] Re Milton [1999] VSC 417, [5]-[8].
In In the Will of Bottoms[13] is a decision of Phillips J in the Supreme Court of Victoria in 1985. By her will of 1983, the testator appointed as executor and trustee of her estate “the vice principal for the time being of the University of Melbourne”. She died in 1985. The vice principal, Mr Marginson, held that office at the date of execution of the will and also at the date of the death of the testator. An affidavit was before the Court in which Mr Marginson deposed that the testator had written to the University Librarian where she enquired: “would I be permitted to name the University or a person connected with it as executor of my will?” The librarian replied, writing that it was possible, and suggested using the phrase “the vice principal for the time being”, meaning, so he told her, “whoever is vice principal at the time the will is executed”. This letter was handed to the solicitor who prepared the will on the instructions of the testator. Phillips J posed the question that he was to resolve as follows: “whether or not the appointment constitutes a shifting executorship”.
[13] In the Will of Bottoms (Unreported, Supreme Court of Victoria, Phillips J, 26 July 1985).

Brought to the attention of Phillips J were the decisions in Re Were, Re Anketell and Re Bone.Phillips J considered those decisions in turn, and further mentioned the decision in In the Will of Laffan.[14] Citing the 22^nd edition of Tristam & Cootes Probate Practice and the decision in In the Goods of Haynes,[15] Phillips J stated the proposition that providing the person who is appointed by a testator can be identified, the testator may appoint someone by reference to his or her office. Phillips J concluded:[16]
[14] In the Will of Laffan (1933) 50 WN(NSW) 227.
[15] In the Goods of Haynes (1842) 3 Curtis 75.
[16] In the Will of Bottoms (Unreported, Supreme Court of Victoria, Phillips J, 26 July 1985).
It appears from the evidentiary material, which I believe is admissible pursuant to s 22A of the Wills Act 1958, that the testator originally had in mind either to appoint the University or a person connected with it, but her action in handing Mr Richardson's letter to her solicitor as part of her instructions shows she then intended to appoint an officer of the University.
Order
I have come to the conclusion, with some doubt, that the testatrix intended to appoint as her executor the person who might be the vice principal of the University of Melbourne at the time of her death. Mr Marginson was vice principal at the relevant date. If I am wrong in this, then the only other possible conclusion on the evidence is that the testatrix intended to appoint the person who might be the vice principal as at the date of the will. Again, Mr Marginson held this office at the relevant date. Thus then the effect is the same as if Mr Marginson had been named in the will, and I therefore grant probate to him.
In In the Will of Laffan[17] is a decision of Street J in the Supreme Court of New South Wales. There, a testator by his will appointed as executor “the Revd. Visitor of the Australian Province of the Congregation of the Mission”. Reverend O’Reilly held this office both at the date of the execution of the will and at the date of the death of the testator. Street J determined that probate should be granted without any limitation on the grant.
[17] In the Will of Laffan (1933) 50 WN(NSW) 227.
In In the Estate of Yearwood[18] is a decision of Legoe J, a Judge of this Court. This decision was not referred to by the Registrar, nor was it the subject of submissions of counsel for the applicant, and although no reference is made by Legoe J to the concept or principle of a “shifting executorship”, I consider, in particular being a decision of this Court, his remarks apposite to the within proceeding. The decision demonstrates that the real question to be asked is one of certainty of appointment.
[18] In the Estate of Yearwood (1982) 30 SASR 169.
I turn now to the facts of this decision. Having duly executed her will, the testator appointed executors in the following terms:[19]
I appoint the partners at the date of my death in the firm of Thomson & Co. Solicitors of 47 Waymouth Street, Adelaide in the said State, or the firm which at that date has succeeded to and carried on its practice, to be the Executors and Trustees of this my Will (and I express the wish that two and only two of them shall prove my Will and act initially in its trusts).
[Emphasis added.]
[19] As extracted in In the Estate of Yearwood (1982) 30 SASR 169, 170.
Prior to the death of the testator there had been dissolution of the partnership of the firm of practitioners. The partners formed three new firms, none of which actually “succeeded to” and “carried on [the] practice” of the original firm. The issue before the Court, as stated by Legoe J, was whether there had been an effective appointment of an executor or executors or “whether in the events that have happened the executorship had failed for uncertainty…”.[20] Legoe J considered at some length appointments of this nature, and in drawing on the authorities which made clear that an appointment clause which appoints partners, appoints the individual partners and those which sought to delineate between cases where the appointment would be void for uncertainty and those which would not, observed:[21]
[20] In the Estate of Yearwood (1982) 30 SASR 169, 170.
[21] In the Estate of Yearwood (1982) 30 SASR 169, 170, 171-172.
An appointment clause, which states, "Appoint the partners ... in the firm of ... & Co.", will be interpreted as the appointment of all the individual partners in the firm; see Law Society's Gazette (supra) p. 244, footnote 6 and Tristram and Coote's Probate Practice, 21st ed., p. 115. Halsbury, Laws of England, 3rd ed. vol. 16, par. 189, at p. 127 states: "The appointment as executors of an ordinary partnership firm is considered to be an appointment not of a firm collectively, but of the individuals composing the firm."
Legoe J then conducted an extensive review of the authorities before concluding:[22]
[22] In the Estate of Yearwood (1982) 30 SASR 169, 170, 173-175.
Dissolution of the firm does not affect the appointment of executors—Halsbury, (supra) par. 189 at p. 127 and 4th ed., vol. 17, par. 719, footnote 2, citing In the Goods of Robert Fernie.
But as Oerton says in Part I (p. 244, second column): "If some method of selection is to be used care must be taken over the words employed because there is a danger that such an appointment might be void for uncertainty." At p. 245, second column, the learned author states: "But if there is a special class (e.g. the partners in a certain firm at the date of death) the members of that class must be clearly ascertainable, and this may not be the case if there have been substantial changes in the constitution of the firm." (The italics are mine). … As Oerton goes on to discuss in Part II of his article (p. 344, first column):
The partners may split up and start separate practices, one carrying some clients with him, another carrying some with him, and so on. A sole or surviving partner may die and the Law Society may appoint a manager. The firm may amalgamate with another and this amalgamation may be linked with a contemporaneous retirement of a partner or other severance of partnership. The firm may cease practice altogether. And apart from events of these kinds, there are changes of name, changes of partners, and changes of address which happen more frequently. It is obvious enough that it may on occasion be very hard to decide whether a particular firm which exists at the testator's death is in fact the "successor" or "successor in business" or is "carrying on the practice" of the firm which the testator knew. And if it is difficult to decide this, it may be harder still to prove it to the satisfaction of the Probate Registry whose duty it would be to require proof. Circumstances could well be imagined in which recourse would eventually have to be had to the Court.
…
In In re Bubnick; Marian v. Bubnick the partnership agreement contained a clause reading: "If either partner shall die during the continuance of the partnership the other shall succeed to his or her interest in the capital and assets of the partnership." The widow of a deceased partner and her co-executor took out an interpretation summons claiming (a) this clause created a joint tenancy or tenancy in common between the partners, and (b) a declaration as to the rights of the widow/partner and the deceased's three children. On appeal the order of Hale J. was upheld, who had chosen not to answer the specific question as to joint tenancy or tenancy in common, but to declare that the widow had "succeeded to the share of the abovementioned deceased in partnership—without any payment for such share". The real question on the summons was whether the two executors or the widow were beneficially entitled to the deceased's share in the partnership as defined by the Act. Wolff C.J. said:
The executors say they merely passed the title subject to payment by the successor to the estate of the value of the share taken by the survivor. But the words "succeed to" import a beneficial as well as a legal succession. The expression to "succeed to" in reference to property or rights or interest in property is common and imports the act of becoming entitled to possession and enjoyment of some legal estate or privilege.
There does not appear to be any authority, at least in Australia, which considers an appointment clause of the partners in a firm who at the date of the testator's death carry on practice or who at that date have succeeded to and carry on that practice. There is no authority which suggests that the partners in a firm who have split up into a number of smaller firms, or that any of the new firms who may carry on practice of the old firm, whether collectively or otherwise, can be said to have succeeded to the practice of the old firm. In the present case the facts and the existence of the dissolutions would appear to run counter to any such implication. The alternative words in the appointment clause under consideration would clearly suggest a single successor. If the testatrix had intended to cover the possibility of multiple successors then clearly the plural form should have been expressly used in the clause to make this intention clear.
[Footnotes omitted.]
In the event, Legoe J concluded that the clause did fail for uncertainty. The events which had occurred, in his Honour’s view, meant that the partners in the firm of Thomson & Co as they were at the time of execution of the will, were no longer identifiable. Further, his Honour concluded that it was not possible to say that any firm had “succeeded to and carried on” the practice of Thomson & Co.
In In the Estate of Jones[23] the issue before Hill J was whether in a case where the holder of an office had been appointed executor, the person entitled to probate was the holder of that office at the time when the will was executed or at the date of the testator’s death. There, the testator, a clerk in holy orders, bequeathed his estate for the benefit of poor clergy in the County of Monmouthshire and appointed “the President of the Monmouthshire branch of the English Church Union” and a George Davies to be the executors of his estate. The will was executed in 1912 and the testator died in 1926.
[23] In the Estate of Jones (1927) 43 T L Rep 324.
At the time of the testator’s death, Mr Lawrence was the relevant president of the Union. The occupant of that office at the time of the execution of the will had resigned from the position. Mr Lawrence sought a grant of probate as executor in the will. According to the report, it was submitted that on the construction of the will as a whole, it was clear that the testator intended to appoint as his executor the person who held the office of president at the time of his death and who could give effect to the charitable bequests in his will. The general rule of construction, it was said, that words indicating an existing individual were considered to refer to the date of the will and not to date of the testator’s death, did not necessarily apply where the gift was to a person holding an official position. Counsel relied on the sixth edition of Jarman on Wills and on the decision in In re Laffan and Downes’ Contract.[24] Hill J determined that he was satisfied that Mr Lawrence was entitled to the grant and made the order as sought. This meant that of the original executors, Davies, was the only one who remained.
[24] In re Laffan and Downes’ Contract [1897] 1 IR 469.
Counsel for the applicant in the within proceeding sought to apply this decision, contending that the applicant, the priest in charge, held a specific official position.
It is notable that there is an apparent absence of English authority referencing the so-called principle of “shifting executorship” in such terms as those referred to in the Australian authorities, which predominantly appear to be Victorian. Counsel for the applicant could not point to any. English texts appear to be silent on a definition of such a concept. Mortimer[25] defines the manner in which an executor may be appointed and refers to circumstances in which the appointment of a person may be void for uncertainty. There appears to be no mention of the so-called principle of “shifting executorship”. Similarly in Tristram and Cootes Probate Practice,[26] the authors define persons who may be appointed executors and, under the heading “appointment void for uncertainty”, there is no reference to a principle of “shifting executorship”.[27] Appointments deemed to be void fall within the same category as those defined in Mortimer, as above. Williams, Mortimer and Sunnucks, Executors, Administrators and Probate,[28] comment on the appointment of executors and under the heading “appointment bad for uncertainty” use similar examples as do the abovementioned authors, but they commence commentary in respect of the topic with the words “[i]t must be possible to ascertain whom the testator was appointing as executor”.[29] Again, there appears to be no mention of the principle of “shifting executorship” in this text.
[25] Mortimer, The Law and Practice of the Probate Division (2nd ed, 1927) 205, 215.
[26] Tristram and Cootes Probate Practice (21^st ed, 1960) 110. South Australian practice follows the 26th edition of this text; the section on this topic being to the same effect.
[27] Tristram and Cootes Probate Practice (21^st ed, 1960) 110, 113.
[28] Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (19th ed, 2008) ch 3.
[29] Williams, Mortimer and Sunnocks, Executors, Administrators and Probate (19th ed, 2008) ch 3, 3-21.
A number of the decisions I have set out above refer to the ascertainment of the intention of a testator as to his or her wishes and place emphasis on that matter. As earlier mentioned, however, none of the decisions, until Re Khan, considered the expression “for the time being”. It is appropriate now to return to that decision and a consideration of the expression “for the time being”.
For the Time Being
Counsel for the applicant referred to the decision in Healy v Real Estate Institute of Western Australia (Inc).[30]There, Commissioner Odes QC referred to and adopted a definition of the expression found in Stroud’s Judicial Dictionary,[31] where it is said that the phrase:[32]
[m]ay, according to its context, mean the time present, or denote a single period of time; but its general sense is that of time indefinite, and refers to an indefinite state of facts which will arise in the future, and which may (and probably will) vary from time to time (Ellison v Thomas 31 LJ Ch 867; 32 LJ Ch 32; Coles v Pack LR 5 CP 65). See also Re Gunter’s Settlement Trusts [1949] Ch 502.
I shall return shortly to the decisions referred to in this extract.
[30] Healy v Real Estate Institute of Western Australia (Inc) [2004] WASC 163.
[31] Stroud’s Judicial Dictionary (6th ed, 2000), Vol 3, 2668.
[32] Healy v Real Estate Institute of Western Australia (Inc) [2004] WASC 163, [59].
In Re Khan, as I set out earlier, counsel there for the applicant also referred to Addey v Woolley[33] and said that the appointment of an executor in these circumstances is analogous to those cases in which it has been held that rights conferred on “officers for the time being” are rights conferred on officers who are such when any action is commenced either by or against them, “not those who were such when the right arose”. These arguments appear to have been accepted by Macrossan CJ in Re Khan.[34]
[33] Addey v Woolley (1819) 8 Taunt 691; 129 ER 552, 53.
[34] The report of this decision does not set out any written reasons of Macrossan CJ, rather the arguments of counsel and a reported outcome that his Honour granted probate to the applicants for so long as they should hold the office of secretary of the corporation of the mosque. The arguments of the applicants appear to have been accepted by his Honour.
In the context of a definition of the expression “mentally ill person” contained in the Mental Health Act 1958 (NSW), Powell J in the Supreme Court of New South Wales formed the view that the phrase “for the time being” was “not to be construed as being limited to the present and the immediately ensuing time; rather it ought to be construed as extending to include the reasonably foreseeable future.”[35]
[35] CF v TCML [1983] 1 NSWLR 138, 141.
In Moss v Dunlop,[36] the testator had devised and bequeathed his estate upon trust to convert and invest and out of the income to pay annuitites and to apply surplus residue in such manner as the testator may appoint, and failing such appointment to “pay the same to my own next of kin for the time being, equally among them share and share alike, declaring hereby that my said trustees shall be the sole judges as to whether the whole, and what parts, of my said means estate and effects, is and shall be necessary for the purposes of the aforesaid, or any of them.” Sir Page Wood VC held that the next of kin at the time of the death of the testator were those entitled to the residue. In reaching this conclusion, Sir Page Wood VC reasoned:[37]
I think it is open to me to say that there is no such clear, express and positive necessity for construing the words used as referring to a future time, as to overcome the general rule that the words next of kin mean next of kin at the death. The phrase employed is not quite so strong as if it had been next of kin according to the statute; but it does not require me to depart from the prima facie construction. I do not overlook the argument, which may be founded on the words “for the time being,” that, to refer next of kin to the period of death is, in effect, to reduce the words “for the time being” to a nullity. But this is never a conclusive argument. It is a matter of constant occurrence to find in an instrument more words than are necessary; and in this will there are many examples of the same kind. For instance, the testator says that the will is not to affect his own life interest, and he is careful to reserve to himself a power of revocation. But for these words, “for the time being,’’ it would be perfectly clear that the whole fund was meant to go together, both that which consisted of residue divisible forthwith, and that which was to result from the dropping of the annuities.
[36] Moss v Dunlop (1859) Johns 490.
[37] Moss v Dunlop (1859) Johns 490, 493-494.
In Ellison v Thomas,[38] by a settlement an amount of money was directed to be paid after the death of Thomas Fry and to be held on trust for the children of Richard Cresswell “other than” and besides an eldest or only son “for the time being entitled” to certain other estates under another settlement. It was held that the words “for the time being” might refer not only to one particular time, but to several successive periods, and that one who had been an eldest son and also one who had become an eldest son were to be excluded from benefit. In reaching his conclusion, Sir R T Kindersley VC emphasised that the words “for the time being” appear capable of different meaning according to their context.[39]
[38] Ellison v Thomas (1862) 2 Dr & Sm 111.
[39] Ellison v Thomas (1862) 2 Dr & Sm 111, 114.
The following propositions may be discerned from these authorities:
-a person holding office for the time being may be a person with office which occurs in the future. In the within proceeding, at the date of the deceased’s will, a priest, Father Ckuj, held that office but the deceased could not have predicted the date of her death, only that it would occur at a date subsequent to the execution of the will, and therefore could not say whether Ckuj would be in office at that date;
-the expression “for the time being” means that an event will occur eventually and that when it does, the person who has office on the happening of that event, fulfils the condition; and
-the right of the person to fulfil the condition is the person or persons who are able to commence an action, in this case, making an application for a grant of probate in respect of the will of the testator.

It was submitted before me that the approach adopted by Macrossan CJ is more appropriate than simply asserting that there is uncertainty in the appointment of an executor. This submission has merit. A testator cannot speculate as to who, on the date of his or her death, will hold office. However a testator may want a particular office holder to be appointed to the office of executor.
The testator in the present proceeding nominated as her executor “the Priest in Charge for the time being of the Ukrainian Catholic Church at Wayville.” The testator did not specifically nominate and appoint Father Ckuj, the Priest in Charge at the date of the will. To my mind, the testator’s intentions are tolerably clear. She intended to confer rights on the “Priest in Charge” who holds office when duties of an executor are to be performed.
Having regard to the foregoing, in my view, the appointment of the executor is valid. Insofar as it is necessary for me to consider, for reasons I touch on below, I do not consider that the deceased intended to create what has been called a shifting executorship.
Principles of Construction
In light of my conclusion above it is not strictly necessary for me to consider the following issue. However, if the appointment in the within proceeding was somehow affected by the principle referred to in Re Were, I consider that there is ample evidence, falling within the “armchair” principle of interpretation, to satisfy me that that the deceased intended the applicant to hold the office of executor. Evidence of the surrounding circumstances is admissible under the “armchair” principle.[40] Evidence surrounding the testator in her “armchair” before the will and at the date of execution of her will is before me. A court is entitled to know certain information about the circumstances surrounding a testator when it is construing his or her will.[41] Such evidence is admissible as the court infers that the testator had in mind his or her own surrounding circumstances at the relevant time. A classic statement of this principle can be found in the following observations in Allgood v Blake:[42]
The general rule is that, in construing a will, the Court is entitled to put itself in the position of the testator, and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention evidenced by the words used with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. … [T]he meaning of words varies according to the circumstances of and concerning which they are used.
[40] See In the Goods of Steele (1968) LR 1 P & D 575, 577; Re Smith [1939] VLR 213, 216-217; Re Dear [1975] 2 NZLR 254; Theobold on Wills (16^th ed, 2001) 92.
[41] Re Padbury, deceased; Home of Peace for the Dying and Incurable v Solicitor-General (1908) 7 CLR 680, 686 (Griffith CJ); Charter v Charter (1874) LR 7 HL 364, 377 (Lord Cairns LC).
[42] Allgood v Blake (1873) LR 8 Ex 160, 162; see also Boyes v Cook (1880) 14 Ch D 53, 56.
Further, a court is obliged to read the whole of a will as part of the construction process, for one part of it may assist a court in determining the intentions of a testator in another.[43] For example, the appointment of an executor cannot take effect until death. This supports the construction in the within proceeding that behind the impugned appointment is an intention as to a future event; that is, the death of the testator. Further, clause 3 of the will makes a gift to the Roman Catholic Archbishop for the time being, again, as submitted by counsel for the applicant, evoking futurity.
[43] For example see Fell v Fell (1922) 31 CLR 268, 273-4 (Isaacs J).
In my view, references to the administrator of the Roman Catholic Archdiocese of Adelaide and receipt of the proper officer “shall be a full and sufficient discharge to my trustee” evidence an intention that the executor was to be the priest at the date of death of the deceased.
Mr Gorpynyak, the priest in charge at the date of the death of the deceased, deposed to there having been a number of priests in charge of the Church since it was built in 1963. The deceased saw five of these priests. The deceased was a founding member of the Church, a benefactor, and heavily involved in Church activities. From this a clear inference arises that the deceased was a woman who was familiar with seeing a variation of priests during the period from the institution of the Church to the date of the execution of her will.
Finally, by affidavit, the deceased’s solicitor Ms Iwaniw deposes that she read the will to the testator in both English and Ukrainian. Knowledge and approval may be established by a presumption of law, for a testator is presumed by law to know and approve the terms of his or her will if it is established that the testator read or had the will read over to himself or herself before execution of the document and there were no circumstances exciting suspicion that the terms of the will may not have been fully known and approved by the testator.[44] As Isaacs J in Nock v Austin observed:[45]
The relevant law is not doubtful. It may be thus stated:—(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v. Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt; Tyrrell v. Painton; Shama Churn Kundu v. Khettromoni Dasi)….
[Footnotes omitted.]
[44] Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J); Guardhouse v Blackburn (1866) LR 1 P & D 109, 116 (Sir James Wilde P).
[45] Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).
Here, there are no suspicious circumstances surrounding the will, Ms Iwaniw having seen the deceased alone and the testator having been religiously inclined, and, it was submitted, devotedly so. Ms Iwaniw read the will to the deceased in both in English and Ukrainian. In these circumstances, the testator is deemed to have known and approved the terms of clause 3 of the will.
Conclusion
For these reasons, I make an order that the appointment is valid. I further order that the applicant draw minutes of order in accordance with these reasons.