In the Estate of CHOMIAK

The Estate of Chomiak involved a referral to the court regarding the validity of an executor's appointment in the will of the deceased, who had appointed "the priest in charge for the time being of the Ukrainian Catholic Church at Wayville" as her sole executor. The Registrar of Probates sought direction on whether such an appointment was valid, specifically whether it referred to the priest in charge at the time of the will or at the date of the deceased's death.

The court was required to determine whether the appointment constituted a valid executor appointment under the circumstances and to consider the principle of "shifting executorship." This principle dictates that if an executor is appointed to act upon a specific condition, and that condition is not met, the appointment fails, and the will must be administered by the court or another appointed executor.

The court found no suspicious circumstances surrounding the will, as the deceased's friend, Ms Iwaniw, had seen the deceased alone during the will's creation, and the deceased was devoutly religious. Ms Iwaniw read the will to the deceased in both English and Ukrainian, ensuring the deceased understood and approved the terms. Given these facts, the court concluded that the testator knew and approved the terms of the will, including the appointment of the priest as executor. Consequently, the court ruled that the appointment was valid, and the executor named in the will was to act accordingly. The court ordered the Registrar to draw minutes of the order in accordance with these reasons.