Case Notes > Fahey v Bird [2023] VSC 540, Moore J

Fahey v Bird [2023] VSC 540, Moore J

By Karen Gaston
Posted October 31, 2023


Failing to file estate accounts, despite undertakings and orders to do so, even after distributions are made can amount to contempt.


probate was granted to the executor in April 2004.  Half the estate was left to an infant granddaughter (the executor’s niece) who was at that time just 2 years of age.  It was to be held on trust for her until she turned 21 years of age.

She turned 18 and sought an account from her uncle.  Her own circumstances were tragic and her family and financial circumstances were tragic and well known to her uncle.

The undertaking given by an executor in Victoria includes:[1]

On 6 occasions between January and March 2021, the Assistant Registrar of Probates wrote to the defendant and his former solicitors, requesting he file an account.  No response and no accounts were filed.

The plaintiff commenced proceedings seeking an account, which were listed for hearing on 29 August 2022.  The executor did not appear, and the hearing took place without him.

The orders were served on him, but still the executor did not comply with them.

A summons for contempt issued and the defendant consented to a timetable of directions for the filing of affidavits in relation to the contempt proceedings.

Despite this he did not comply with the timetable nor did he appear at the return of the contempt proceedings.  A warrant issued for his arrest.

The executor was given two further opportunities to file the administration accounts and on each occasion, he failed to do so.  He also failed to file any material in relation to the contempt proceedings.

The only matter he raised in his defence, from the bar table, was that he had “done everything he needed to do”.  This was a reference to the fact that the plaintiff had been (with the assistance of a specific direction from the Court) able to successfully make an unclaimed monies application from the Commonwealth Consolidated Revenue Fund.

The Court did not agree that was “everything he needed to do”. Moore J said:

[53]      In occupying the office of executor, it has been the defendant’s responsibility to discharge the public interest in ensuring the due administration of estates according to law.  His admitted contempts have had a significant adverse effect on the administration of justice because those interest in the affairs of a particular deceased estate, and the community generally, are entitled to expect that executors will properly discharge the duties of that office which, in addition to complying with court orders, includes producing accounts of their administration when properly required to do so. 


Mr Bird was sentenced to 4 months imprisonment, wholly suspended if he filed the estate accounts within 28 days of order.

Obviously, the conduct of this was particularly scandalous, but it’s a timely reminder that even if most of the estate is paid out to a beneficiary, that is not the end of the matter. 

Proper accounts matter even after distributions are made.

Read the decision here.

[1] Note that there is no such undertaking in Queensland, but that this generally accords with s 52(1)(a) to (c) of the Succession Act 1982 (Qld).

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