MARGARET ANNE BRAITHWAITE [2025] SASC 26

Applicant: MARGARET ANNE BRAITHWAITE Counsel: MR J WHITE SC - Solicitor: ANDERSONS SOLICITORS Hearing Date/s: 20/02/2025 File No/s: CIV-22-008152 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. IN THE MATTER OF MARGARET ANNE BRAITHWAITE AS EXECUTOR OF THE ESTATE OF MERVYN WILLIAM CHARLES BRAITHWAITE (DECEASED) [2025] SASC 26 Judgment of the Honourable Justice Stanley 7 March 2025 SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES - PRESUMPTION OF DEATH AND SURVIVORSHIP SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - INTEREST OF BENEFICIARY IN PARTICULAR PROPERTY On 2 September 2022 the applicant, Margaret Anne Braithwaite (Margaret) applied to the Court for directions and advice pursuant to s 69 of the Administration and Probate Act 1919 (SA). Mervyn William Charles Braithwaite (William) died on 7 December 2009. He was survived by his wife Margaret who is the executor of his estate. Since his death, William’s estate has been fully administered save for the disposition of 18 Maitland Road, Minlaton, CT 5820/257 (the Minlaton property). William is one of two registered proprietors of the Minlaton property. The other registered proprietor is William’s former wife Kathleen Joy Braithwaite (Kathleen). They were joint tenants. William married Kathleen in 1958. Margaret alleges that during the 1960s Kathleen was arrested for bigamy on account of an earlier marriage om 1953 to a Frederick Wilson Margetts and that William never saw or heard from Kathleen again. Since William’s death, Margaret has conducted extensive searches to locate Kathleen and to establish whether she survived William to no avail. It is not open to the Court, nor is it necessary, that a determination be made as to the legitimacy of William and Kathleen’s marriage. The issue for determination is whether the presumption of survivorship of Kathleen’s life has been overturned such that it can be determined William was the sole proprietor of the Minlaton property at the time of his death and the entitlement to the property therefore falls to Margaret. Held: -- 1 of 7 -- 1. The presumption of survivorship of Kathleen Joy Braithwaite (also known as Kathleen Joy Margetts and Kathleen Joy Gould) has been overturned. Her death occurred prior to the death of Mervyn William Charles Braithwaite on 7 December 2009. 2. At the time of his death, Mervyn William Charles Braithwaite was the sole proprietor of 18 Maitland Road, Minlaton, CT 5820/257. 3. The applicant is entitled to cause the sale of 18 Maitland Road, Minlaton CT 5820/257. 4. The Applicant is entitled to reimburse the costs and expenses she has incurred as executor in maintaining the Minlaton property, in her enquiries to identify and locate Kathleen Joy Braithwaite, and in her costs of and incidental to these proceedings from the net proceeds of the sale of the property. Real Property Act 1886 (SA) s 64 and s 188; Administration and Probate Act 1919 (SA) s 69, referred to. Axon v Axon (1937) 59 CLR 395, applied. -- 2 of 7 -- IN THE MATTER OF MARGARET ANNE BRAITHWAITE AS EXECUTOR OF THE ESTATE OF MERVYN WILLIAM CHARLES BRAITHWAITE (DECEASED) [2025] SASC 26 Introduction 1 The applicant, Margaret Anne Braithwaite (Margaret) married Mervyn William Charles Braithwaite (known as William) on 14 February 1976. William died on 7 December 2009. Margaret is William’s widow, executor and sole beneficiary of his estate. 2 William died as one of two registered proprietors as a joint tenant of real property at 18 Maitland Road, Minlaton, CT 5820/257 (the Minlaton property). The other registered proprietor is Kathleen Joy Braithwaite (Kathleen) stated in the original Certificate of Title to be William’s wife. 3 William’s estate is small. It essentially comprises the Minlaton property and net funds of $17,291.79. It is fully administered save for the disposition of the Minlaton property. 4 On 2 September 2022 Margaret applied for advice and directions pursuant to s 69 of the Administration and Probate Act 1919 (SA). She sought orders of the Court to permit sale of the Minlaton property and the completion of the administration of William’s estate. 5 William married Kathleen, then called Kathleen Joy Margetts on 8 February 1958.1 The marriage certificate is not as clear as it could be, but appears to show Kathleen’s age as at 8 February 1958 to be 30 years. 6 The applicant submits that by the 1960s the suspicion developed that Kathleen and William’s marriage was bigamous on the basis that Kathleen was still married. A marriage certificate indicates that a Kathleen Joy Gould married a Frederick Wilson Margetts (Frederick) on 18 May 1953. The certificate records Kathleen’s age as 29 at the time of the marriage.2 Margaret believes Kathleen was arrested sometime in the 1960s, allegedly for bigamy.3 7 Maragret said that William never saw or heard from Kathleen again. Nor did William’s brother Harold.4 8 Margaret has made extensive searches for Kathleen. As best Margaret knows or can establish, Kathleen has never enquired after or sought to claim an interest 1 Exhibit MAB-6 to the Affidavit of Margaret Anne Braithwaite 26 July 2022 (FDN 2). 2 Exhibit MAB-5 to the Affidavit of Margaret Anne Braithwaite 26 July 2022 (FDN 2). 3 Affidavit of Margaret Anne Braithwaite 29 January 2025 (FDN 7) at [11]-[12]. 4 Exhibit MAB-11 to the Affidavit of Margaret Anne Braithwaite 26 July 2022 (FDN 2). -- 3 of 7 -- [2025] SASC 26 Stanley J 2 in the Minlaton property. She appears to have abandoned her relationship with William, including the property. Priority of deaths 9 I accept that if Kathleen was still purported to marry Frederick when she married William, her marriage to William was bigamous and of no legal matrimonial effect.5 10 It is not necessary for the Court to determine the legitimacy or otherwise of the two marriages. The issue is the entitlement to the Minlaton property. 11 Whichever of Kathleen and William survived the other became sole proprietor by survivorship. 12 Margaret has made extensive searches to locate Kathleen, and to establish whether she survived William. Those searches have not determined conclusively whether Kathleen still lived at 7 December 2009. Kathleen cannot be found. 13 However, it seems unlikely that Kathleen survived William. 14 That inference follows from the evidence that Kathleen was 30 years old when she went through a marriage ceremony on 8 February 1958 or 29 years old at the time of her marriage to Frederick on 18 May 1953. Accordingly, she was born as early as 1924 or at the latest by 1928. As a result, if she was alive when William died she would have been between 81 or 85 depending on which certificate of marriage is taken to be accurate. 15 The Australian Bureau of Statistics records life expectancy at birth for an Australian female born in 1922 as 63.3 years, and in 1934 as 67.1 years.6 16 Life expectancy has been steadily growing in Australia over the last 100 years. The evidence establishes that on average a female born in 1927 or early 1928 would have had a life expectancy of approximately 65 years.7 The ABS has also produced a study of life expectancy which includes a table of further life expectancy at various ages. That recorded life expectancy subsequent to additional years of life. The effect of that data is that a female born between 1932 and 1934, i.e., born later than Kathleen, had an expectancy at age 25 of 47.2 additional years of life.8 Assuming a simple arithmetic process of deducting five years from the 47.2 years, Kathleen’s life expectancy at age 30 was 72.2 years or less. 5 LexisNexis Halsbury’s Laws of Australia (online at 6 March 2025) Bigamy and Existing Marriage [205- 460]. 6 Australian Bureau of Statistics, Life Expectancy Tables 2021 (16 July 2024), https://www.abs.gov.au/statistics/people/population/historical-population/latest-release. 7 These are figures for life expectancy at birth. 8 Australian Bureau of Statistics, Life expectancy trends – Australia, ABS Australian Social Trends 4102.0 March 2011 at p 2. -- 4 of 7 -- [2025] SASC 26 Stanley J 3 17 Accordingly, the data supports a finding that as a general proposition a 30- year-old woman in 1958 had a life expectancy of an additional 42.2 years, that is to say to the year 2000 or thereabouts, nine years before William’s death. 18 In Axon v Axon9 Dixon J, as he then was, said:10 When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man's fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts. 19 In this case it cannot be said, having regard to the circumstances, that it is reasonably likely in the ordinary course of events Kathleen would have survived to outlive William given the length of time between the last contact with Kathleen, which was prior to 1966,11 to William’s death is just under 44 years. While no circumstances endangered Kathleen’s life such as illness, enlistment for active service or participation in a perilous enterprise as known to exist, it is nonetheless relevant to the inference that Kathleen did not survive William. 20 I accept that more than reasonable enquiries have been made into Kathleen’s fate or whereabouts without any evidence that she survived him. If she was born in 1928 she would have been 81 at the time of William’s death, or older if her date of birth was in 1923. That analysis supports the inference that Kathleen did not survive William. 21 For these reasons I am satisfied on the balance of probabilities that Kathleen predeceased William and a declaration to that effect should be made. Administration of William’s estate 22 William’s estate has been obliged to maintain the Minlaton property. The cost of doing so, and the cost of the searches, legal advice and the present application, have fallen on Margaret. They substantially exceed the funds in the estate. With interest they now amount to approximately $83,000. The likely value of the Minlaton property is between $85,000 and $100,000.12 23 I accept it is not economic to conduct any further searches for Kathleen. The administration of William’s estate should now be concluded. Margaret seeks directions or orders of the Court to do so. 9 (1937) 59 CLR 395. 10 (1937) 59 CLR 395 at 404-405. 11 Exhibit MAB-11 (Affidavit of Harold Dalton Braithwaite sworn 3 March 2016) to the Affidavit of Margaret Anne Braithwaite 26 July 2022 (FDN 2). 12 Exhibit MAB-20 to the Affidavit of Margaret Anne Braithwaite 29 January 2025 (FDN 7). -- 5 of 7 -- [2025] SASC 26 Stanley J 4 24 As I find Kathleen predeceased William, Margaret is entitled to the Minlaton property as William’s widow. 25 As a result, it is unnecessary to consider the alternative submission that Margaret is entitled to be reimbursed for the cost of maintenance and the searches she has conducted as executor, and which, by reason of her entitlements under William’s will, have been at her expense. 26 The Court is satisfied that the presumption of survivorship of Kathleen’s life has been overturned. Margaret is entitled to a declaration that Kathleen did not survive William; an order that Margaret is entitled to be reimbursed the costs of maintenance of the Minlaton property from the net proceeds of its sale, the investigations and searches she has incurred as executor, and which, by reason of her entitlement under William’s will, have been at her expense; as well as the costs of these proceedings. The Court should also make orders pursuant to s 64 and s 188 of the Real Property Act 1886 (SA) for the transmission of the Minlaton property to Margaret as executor of William’s estate and order that she is at liberty to cause the Minlaton property to be sold. Conclusion 27 Accordingly, I make the following orders: 1. Kathleen Joy Braithwaite of Minlaton SA 5576, registered proprietor as joint tenant with Mervyn William Charles Braithwaite of Allotment 124 Filed Plan 196356 in the Area named Minlaton Hundred of Minlacowie, being the land described and comprised in Certificate of Title Register Book Volume 5820 Folio 257 (“the Minlaton land”), died before the death of the said Mervyn William Charles Braithwaite. 2. The Applicant is at liberty to cause the said land to be sold. 3. From the net proceeds of sale, the Applicant may reimburse her costs and expenses incurred in maintaining the Minlaton land since the death of the said Mervyn William Charles Braithwaite, her enquiries to identify and locate the said Kathleen Joy Braithwaite, and her costs of and incidental to these proceedings, on the footing of an indemnity. 4. Pursuant to sections 64 and 188 of the Real Property Act 1886 the Registrar General appointed pursuant to the said Act is directed to enter into the Register Book such memorials or entries as may be necessary: 4.1 To record the death of the said Kathleen Joy Braithwaite as having occurred prior to the death of the said Mervyn William Charles Braithwaite, 4.2 To transmit the Minlaton land to the Applicant as executor of the said Mervyn William Charles Braithwaite. -- 6 of 7 -- [2025] SASC 26 Stanley J 5 5. This matter is certified fit for Senior Counsel. -- 7 of 7 --