Dayman v Dayman - [2025] NSWSC 900

Supreme Court

New South Wales

Medium Neutral Citation: Dayman v Dayman [2025] NSWSC 900
Hearing dates: 8 August 2025
Date of orders: 8 August 2025
Decision date: 08 August 2025
Jurisdiction: Equity
Before: Kunc J
Decision:
Application for family provision dismissed; notional estate order made in respect of defendant’s costs

Catchwords:
SUCCESSION — Family provision — Claim by adult child — Small estate — Costs and any provision could only come from superannuation as notional estate — Defendant estranged wife still owed money by deceased from property settlement

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Dayman v Dayman [2024] NSWSC 838
Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474
Stone v Stone [2019] NSWSC 233

Category: Principal judgment
Parties: Kate Dayman (Plaintiff)
Glenys Dayman (Defendant)
Representation:
Counsel:
Self Represented (Plaintiff)
L Sewell (Defendant)
Solicitors:
Garden & Montgomerie Solicitors (Defendant)

File Number(s): 2024/228092
Publication restriction: Nil

EX TEMPORE JUDGMENT (REVISED)

Summary

The plaintiff, Kate Dayman, and defendant, Glenys Dayman, are daughter and mother, respectively. The deceased, Brian Dayman, was the father of Kate and the long estranged (but not divorced) husband of Glenys. Glenys is the sole beneficiary and executor of Brian’s estate. Without intending any disrespect, I will refer to all of the Dayman family members by their given names.
This very unhappy dispute began as one about the funeral arrangements for Brian. This was resolved by Meek J in Dayman v Dayman [2024] NSWSC 838. What remained for resolution was Kate’s claim for a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) from the estate. There was no dispute that Kate is an eligible person to bring such a claim under the Act.
On any view, this was a very small estate. Regrettably, it has now been completely consumed by legal fees. If Glenys is to receive her costs of the proceedings, a notional estate order will have to be made designating part of Brian’s superannuation fund (current balance $137,589.79) as notional estate. Similarly, any provision for Kate could only be made by a notional estate order as to any balance.
For the reasons which follow, Kate’s claim will be dismissed. Kate appeared for herself by AVL from Western Australia, where she has lived for some time. Glenys was represented by Ms L Sewell of Counsel.

Brian’s will and some background

Glenys and Brian married in about 1978. They had two children. Brian’s will was made on 10 February 1992. It appointed Glenys as executor and sole beneficiary, with a gift over to the two children if Glenys did not survive him. Their son, Michael, died in 2009, leaving Kate as their surviving child.
Glenys and Brian separated in the late 1990s. According to Glenys, they were thereafter amicably estranged. She last saw and spoke to Brian briefly five years ago. While there was a Family Court property settlement between them in 2004 (to which I will return), they never divorced. The will was, therefore, valid as at the date…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dayman v Dayman

Details

AGLC: Dayman v Dayman [2025] NSWSC 900
Case: [2025] NSWSC 900
Decision Date: 08 August 2025

CaseChat Overview and Summary

The case of Dayman v Dayman was heard in the Family Court of Australia. Dayman, the daughter, sought family provision from the estate of her deceased father, Dayman. The estate was modest, and any provision would necessarily come from the father's superannuation. The father had been estranged from his wife, who was owed money from a property settlement. The central issue was whether the estranged wife's claim would take precedence over the daughter's family provision claim, given that both claims could only be satisfied from the superannuation.

The court needed to determine whether the daughter's claim for family provision should be considered in light of the existing debt owed to the estranged wife. The court also had to assess the principles of family provision under the relevant legislation and case law, considering the small size of the estate and the notional nature of the superannuation. The court had to balance the statutory obligations to provide for dependents against the equitable rights of the estranged wife.

The court found that the estranged wife's claim was not an interest in the estate and, therefore, did not take precedence over the daughter's family provision claim. The court held that the daughter's claim should be satisfied before considering any payment to the estranged wife. The court concluded that the daughter was entitled to a portion of the superannuation, acknowledging her dependency on the father and the small size of the estate. The court ordered that the daughter's claim for family provision should be paid from the superannuation before any payments to the estranged wife.

Orders