Dayman v Dayman

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

1. 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.

2. 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.

3. 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.

4. 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

5. 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.

6. 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 of Brian’s death on 12 May 2024.

7. From about 2004 until his death, Brian was in a de facto relationship with Ms Cheryl Brown and lived at Ms Brown’s property at Darlington Point, approximately 35 kilometres south of Griffith in the New South Wales Riverina district. Ms Brown has been put on notice of these proceedings and has chosen not to bring a claim against the estate.

8. I have also been informed that Ms Brown is the carer or guardian for her minor grandson, who also resides at the property and may, therefore, also be an eligible person. However, given the size of the estate and the circumstances generally (including that Ms Brown has chosen not to participate), I am prepared to proceed on the basis that notice of the proceedings to Ms Brown is also sufficient notice to her minor grandson.

9. To give effect to Glenys and Brian’s property settlement, the Federal Court made consent orders on 30 July 2004, including:

“1. That in full and final settlement of all claims that either party may have against the other now or at any time in the future for settlement of property:-

(a) That within 30 days from the date of this Order the husband do transfer to the wife all of his estate and interest as at law and equity in the former matrimonial home being the property situate at XXXXX Street, Broken Hill in the State of New South Wales being the whole of the land comprised and described in Certificate of Title Folio Identifier A/3XXXXXXX.

(b) That the husband do hereafter pay and discharge all payments of principal and interest arising with respect to Memorandum of Mortgage to the ANZ Bank being Business Mortgage Loan number XXXXXXXX and that he do indemnify the wife and keep her forever indemnified with respect to the same.

(c) That the husband do pay to 'Angela Ferdinandy Pty Ltd Trust Account' on behalf of the wife the sum of TWENTY TWO THOUSAND DOLLARS ($22,000.00) on or before 1 July 2005.

(d) That the husband do transfer the Holden Commodore motor vehicle registration number XXXXXX to the wife at her expense within thirty (30) days from the date of this Order.

(e) In the event the husband defaults in making any payment as required by paragraphs 1(b) and 1(c) of this Order, that the wife be at liberty to apply for a splitting Order as against the husband's superannuation entitlement in the in the AMP Self Employed Persons Superannuation fund Member Number S XXXXXXX P to the extent required to satisfy the default and that the husband be restrained from dealing with his entitlement in the AMP self employed persons superannuation fund with respect to member number SXXXXXXXP to the extent of the sum of $47,000.00 pending compliance with paragraphs 1(b) and (c) of this Order.”

10. Brian did not make the mortgage payments that he was required to make under Order 1(b). On 10 November 2006, the Family Court made further orders by way of enforcement of its earlier orders, including:

“1 That by way of enforcement of paragraphs 1(b) and (c) of the Orders made herein on 30 July 2004:-

(a) By way of superannuation splitting:-

(i) That the Court allocate, as required by Section 90MT(4) of the Family Law Act 1975 as amended, a base amount of $19,000.00 to the wife out of that portion of the husband's interest in the AMP Whole of Life Superannuation ("Plan") - SXXXXXXXP under the AMP Self Employed Persons ("Fund") AMP Superannuation Ltd ("Trustee") in respect of member Brian Keith Dayman, Membership No. SXXXXXXXP and that there be a corresponding reduction to the entitlement of the person to whom the splittable payment would have been made in the said AMP Whole of Life Superannuation ("Plan”) - SXXXXXXXP under the AMP Self Employed Persons ("Fund") AMP Superannuation Ltd ("Trustee") but for that order;

(ii) That pursuant to Section 90MT 1(a) of the Family Law Act 1975 whenever the Trustee of the AMP Whole of Life Superannuation ("Plan") - SXXXXXXXXP under the AMP Self Employed Persons ("Fund") AMP Superannuation Ltd ("Trustee") makes a splittable payment out of the husband's interest in the AMP Whole of Life Superannuation ("Plan") - SXXXXXXXP under the AMP Self Employed Persons ("Fund") AMP Superannuation Ltd ("Trustee") the wife is entitled to be paid the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there be a corresponding reduction to the entitlement of the person to whom the splittable payment would have been made in the AMP Whole of Life Superannuation ("Plan'') - SXXXXXXXP under the AMP Self Employed Persons ("Fund") AMP Superannuation Ltd ("Trustee") in respect of member Brian Keith Dayman, but for that order.”

11. The effect of those orders was that Glenys was left with $28,000 unpaid of the $47,000 to which she was entitled under the original order. Pursuant to a direction made by Meek J, Glenys’ solicitors wrote to Kate setting out the circumstances in relation to the claim that Glenys makes for that unpaid balance in the amount of $60,251 (inclusive of interest). Other than some doubt about paragraph 2 of that letter (being the components of the $47,000, there being no dispute that the total figure owed by Brian to Glenys was $47,000), there is no suggestion that the account in the letter is in any way inaccurate. That letter, dated 2 September 2024, states:

“We refer to the direction of Justice Meek made on 28 August 2024, to provide you a letter outlining the amount outstanding by your late father to our client arising from the Family Court orders made in 2004.

1. The original debt is captured in the Family Court Order dated 30 July 2004.

2. There are three parts to original debt, being:

a $22,000.00 relating to mortgage repayments in arrears.

b. $20,000 which your father borrowed from our client to support his business.

c. $5,000.00 in unpaid Court fees owed by your father to our client.

3. The total amount owed by your father to our client in 2004 was $47,000.00.

4. Your father did not contest this debt, nor did he make any payments in respect of it.

5. Your father held an AMP Whole of Life Superannuation Plan (“AMP Super”) in the amount of $39,000.00.

6. Your father withdrew $20,000.00 from the AMP Super due to financial hardship. As a result, $19,000.00 remained in the AMP Super in 2006 when steps were taken to enforce the 2004 court orders.

7. A Superannuation splitting order was made in 2006 and the remaining $19,000.00 held in the AMP Super was set aside for our client upon her reaching retirement age. There is no dispute that this amount could not be paid out immediately, and coincidentally was only able to be paid out in 2024.

8. In the intervening 18-year period, AMP invested the money and it grew over that period.

9. This resulted in our client receiving a payment of $62,189.69 on 24 April 2024 with no prior notice from Resolution Life.

10. This amount represents the $19,000 plus interest and growth over the 18-year period.

11. We are instructed no other payments were made by your father.

12. As the whole of the amount was unable to be secured by the superannuation, there remains an amount of $28,000.00 due from the Court orders since 2004.

13. Our client is entitled to be paid that amount, plus interest.

14. Interest in respect of Family Court orders is at the Reserve Bank Cash Rate published 1 January and 1 July each year plus 6.00%.

15. Using the interest rate applicable under rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Family Court Rules”) the amount of interest payable on the $28,000 is $48,300. This makes the total amount outstanding from the Family Court orders $76,300.

16. However, our client based her calculations on a rate of 5% per annum, which is substantially less than what she is entitled to under the Family Court Rules. The total amount claimed by our client, being the $28,000 plus is interest, is $60,251.31.

The total amount claimed by Glenys is $60,251.00

We trust this satisfies your request to have the amount provided to you in writing as to what our client asserts is owed to her from the Family Court orders.”

12. The superannuation has not yet been distributed. There is no binding nomination. The persons who have made claims for it to the trustee are Glenys, Kate and Ms Brown. The trustee has not yet made a decision in relation to the claims but is aware of the possibility of this Court making a notional estate order.

The estate

13. For probate purposes, the estate has a sworn value of $43,392.38. The main asset of the estate is a property of Brian’s, also at Darlington Point, valued at $25,000. There was evidence before the Court supporting that valuation. Glenys has filed an affidavit affirmed on 31 July 2025 providing further information concerning the financial position of the estate. Her solicitor has filed an updating affidavit as to legal costs affirmed on 1 August 2025.

14. The estate’s assets, including the property, are now valued at $33,452.04. The estate’s liabilities total $46,038.44, including legal fees of these proceedings incurred up to 31 July 2025 of $33,281.12 (indemnity basis). To these figures must be added:

15. $15,786.31, being executorial expenses, which include non-litigation related legal fees of $9,300.71; and

16. $25,000, being Glenys’ solicitor’s estimate (indemnity basis) of her further costs of these proceedings up to and including today’s hearing.

17. Taking those additional figures into account, the estate has liabilities totalling $86,824.75 and assets of $33,452.04. This means that the liabilities of the estate exceed its assets by $53,372.71. Significantly, that calculation does not include the unpaid balance.

18. Kate says the value of the estate should be greater. But there is no evidence on which the Court could find that it should be any more than it appears to be on the current evidence. There are undoubtedly old cars, and perhaps other inconsequential assets that may have belonged to the deceased, currently located at Ms Brown’s property. But what they are, and their actual value (if any) is not something on which the Court has any evidence to express a view.

19. The difficulty now is that, as I have indicated, when legal costs are factored in, the estate without recourse to notional estate has an excess of liabilities over assets of approximately $53,000 including legal costs. The estate’s legal costs of these proceedings on the indemnity basis are $58,281.12 ($33,281.12 + $25,000). Assuming Glenys’ costs of these proceedings are met from the superannuation as notional estate, this leaves $79,308.67 ($137,589.79 - $58,281.12) available from the superannuation as potential notional estate.

20. What happens to any balance of the superannuation after payment of Glenys’ legal costs and any provision for Kate (were the Court to order it) is a matter for the trustee. It might be thought the outstanding balance would be a very material consideration for the trustee to take into account in considering Glenys’ claim. The Court is unaware of what has been advanced by Kate and Ms Brown in relation to their claims on the superannuation, and which the trustee will also have to consider.

Kate’s circumstances

19. Kate is 44 years old. She has tertiary qualifications and more than ten years’ experience as a primary school teacher. She has no health conditions, other than those related to the stress that she has undergone as a result of Brian’s death and these proceedings.

20. I do not minimise the effect of her father’s death and these proceedings on her. They were apparent from the way in which she conducted the proceedings today. It was obvious that the matters which she had to traverse caused her a great deal of distress. But, to her credit, she persevered to present her case to the best of her ability. However, looking to the future, there is no suggestion or evidence that, once the obvious tribulations of the last few months have passed with the passage of time, she will not be able to return to gainful full-time employment.

21. As for her assets, she has a home, which the Court finds should be given a value of $630,000. While Kate disputes that, her evidence as to the value of her home is outdated. Glenys has produced four different sources of kerbside and online valuations which support a valuation of $630,000. Kate’s home is subject to a mortgage of $159,000.

22. Kate has $57,000 in superannuation, and approximately $1,000 in the bank. In addition to her mortgage, she has a liability to Centrelink of approximately $3,500, which is being paid off by a deduction of $12.50 from her fortnightly Centrelink payments. Her gross income for the financial year ending 30 June 2025 was approximately $35,000 comprising income from some teaching and the balance being her Centrelink payments.

23. Because of her lack of employment her income (being her Centrelink payments of $766 per fortnight) is exceeded by her outgoings. Kate said she is meeting the difference out of savings. It is not apparent to me from her evidence where those savings are, other than what is in her bank account. But the important point for present purposes is that her current circumstances are the product of her unemployment. There is no evidence to suggest that she will not be able to return to employment once the present circumstances have passed. She told me she wants to return to work when she has recovered from her present distress, and said that “there’s employment everywhere for teachers. All over Australia.” (T26:44) That is a fortunate position in which to be.

Disposition

24. Kate claims the whole of the estate. In practical terms, that could be no more than the balance of the superannuation pursuant to a notional estate order. Glenys did not put her financial circumstances in issue.

25. Ms Sewell submitted that there has been very inadequate disclosure by Kate of her circumstances. Relying on the decision of Hammerschlag J, as his Honour then was, in Stone v Stone [2019] NSWSC 233, she submits that the Court should dismiss Kate’s claim on that basis alone. She also emphasises Glenys’ reasonable expectation to receive the outstanding balance (see s 87(a) of the Act and [27] below).

26. The same considerations inform the Court’s conclusions that:

27. The failure to make any provision for Kate in the will does not mean that adequate provision has not been made for her proper maintenance, education or advancement in life (so the “jurisdictional question” in s 59(2) of the Act is answered in the negative);

28. Even if the Court had concluded that adequate provision had not been made in the will, the Court would not exercise its discretion to make a family provision order in Kate’s favour; and

29. Given that any such order could only be made by reason of a notional estate order, after considering the factors set out in s 87 of the Act, the Court would not make an order.

30. Section 87 of the Act provides:

The Court must not make a notional estate order unless it has considered the following:

(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order,

(c) any other matter it considers relevant in the circumstances.

28. The considerations are as follows.

29. First, there is the size of the estate. It is very small and, as the evidence discloses, is in fact insolvent but for any application of notional estate. The amount of available notional estate (after Glenys’ legal costs are met) is also very small.

30. Second, in my respectful opinion, the moral obligation of Brian to make good on the property settlement which he agreed with Glenys (that is Glenys’ claim to the outstanding balance) outweighs any obligation which Brian may have had to Kate as an independent, adult child. As I have already observed, upon recovery, Kate has, by her own admission, every opportunity to obtain full-time employment with a long career ahead of her as a teacher.

31. Ms Sewell submitted that a reason why Brian may not have changed his will was his consciousness that he still owed money to Glenys from their property settlement. That may well be the case, but it is not necessary for the Court to make a finding. Irrespective of the reason, the fact remains that Brian died indebted to Glenys for the outstanding balance. I accept that Glenys had a reasonable expectation that the estate would provide some redress in relation to the outstanding balance which should not be lightly interfered with by the Court.

32. I also accept Ms Sewell’s submission that, insofar as one is able to discern Brian’s testamentary intentions, he did not change his will despite life events since 1992 which would have given him every opportunity to do so. Those events include his separation from Glenys, the property settlement, the fact that he did not obtain a divorce which would have brought the will to an end, and whatever reconsideration might have been occasioned by the death of Matthew in 2009. But for the costs of these proceedings, while the estate would not have completely met the outstanding balance, it would certainly have reduced it.

33. Third, having regard to the authorities concerning claims by adult children (see, for example, the decision of Hallen J in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [473] to [474]), and accepting that Kate had a good relationship with her father throughout his life (including regular phone contact, given that they lived on opposite sides of the country), these facts remain:

34. Kate was, and in the absence of evidence otherwise will return to being, a healthy 44-year-old woman living an independent life, who has successfully raised a child;

35. The estate is small and insolvent and the amount of available notional estate is also small;

36. While it might be said that Kate has fallen on hard times, those hard times are the result of her reaction to Brian’s death and these proceedings, and there is no evidence that her current straitened circumstances will endure once she has had an opportunity to recover; and

37. I accept as a discretionary factor, but not sufficient to warrant dismissal of the proceedings in itself, Ms Sewell’s submission that Kate has failed to make proper disclosure in a timely fashion.

38. The reason why I treat this last matter as going to discretion rather than to dismissal is that it must be acknowledged that Kate has been acting for herself. In those circumstances, the fact that a great deal of material was produced as late as yesterday is something which the Court regards as unsatisfactory, but given her unrepresented status, not so serious as to warrant dismissal without more. The very late disclosure of material was certainly inconvenient but not fatally prejudicial to the integrity of the Court’s process, including fairness to Glenys.

39. Finally, I must also record as a final discretionary factor weighing against Kate’s case that I am also of the view that not only was there late disclosure, but I am satisfied that there was a lack of candour in some respects in the evidence which Kate gave. This included failing to disclose what was admittedly a relatively small child support payment that she was receiving.

40. More seriously, she also failed to disclose the potential role that a partner may have, or may have until very recently, had in her life (being “P” which Kate accepted was “Pete” in the text set out below). In that regard, evidence that was tendered of a text message from December 2024 between Kate and her daughter Elaysha reflects poorly on Kate’s credit and approach to the proceedings:

“Sorry I’ve been busy getting court shit ready for mediation with that fucktard who’s claiming a mental breakdown ..… fucking MOLE. I had to hand over all my financials, now she’s claiming this so can’t hand hers over…. what cos she’ll get caught out. Mediation has been adjourned from this [week] until end of Jan. I hope she drops dead – for my sake, but yours too so you don’t ever have to ensure any shit she may out you through again… seriously. Sorry to unleash… but she’s such a manipulative player in court. Now I know why dad walked away with nothing & never spoke a word to her again…& why everyone cuts her off when they do. She’s such a nasty piece of shit. I think I turned out ok, & you even better considering my upbringing by her!!!

Because barristers said she’d only get maybe 25% & I’d get 75% of dad’s estate & she’s refusing to give you any of it, she’s bought Cheryl into court proceedings… to try make me lose a percentage of my share… what FUCKING MOTHER does THAT after I’ve already lost my only other parent I was close with & she’s already got everything when they separated 21 years ago & his super of 69K in April. I hope someone shoots the fkn mole.

I’m trying to keep you out of it because it’s your nan & you don’t have a lot of family, but I bloody hope she isn’t getting court info from you?

She know I’m travelling Aus & have been holidaying. Not many people know this Elaysha. Nor about P.

Have you told her anything? Pls tell me what if you have so I know how much to elaborate in court as I have to portray I NEED dad’s money. Court goes on a NEEDS basis. I need it more than her the court has to see.” (Emphasis added.)

Conclusion

37. For these reasons, the Court will dismiss the claim, and will hear Ms Sewell as to the appropriate form of the orders to be made, including for a notional estate order over so much of the superannuation as is required to meet Glenys’ costs from the estate as executor on the indemnity basis.

38. After hearing Ms Sewell, the Court made directions for her to provide orders to chambers reflecting the outcome. Appropriately, and anticipating what I would have done in any event, Ms Sewell was instructed not to seek an order that Kate pay Glenys’ costs of the proceedings.

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