A recent English County Court case highlighted the risks of not having a Will especially when there are shocking revelations after a parent dies.
Michael Gymer died in December 2021, 6 months after his wife, Julie Gymer. Michael and Julie had three children, Shelley, Gregory, and Lee. It was only after Julie’s death that the Gymer children were made aware that since the 1990s, Michael had had a girlfriend, Beverley, with whom Michael had two secret children, Charlotte and Joseph. Michael’s five children met for the first time at Michael’s funeral.
Julie and Michael both died without having Wills in place. On Julie’s death, her entire estate passed to Michael under the rules of intestacy in England and Wales. On Michael’s death, his entire estate – now worth some £460,000 – was set to pass equally among his five children. Each child was therefore set to inherit around £92,000.
In England, beneficiaries can apply to the court to ask for a distribution contrary to the default intestacy position if the circumstances mean that that would be fairer. Gregory and Lee raised proceedings at Central London County Court under the Inheritance (Provision for Family and Dependants) Act 1975 arguing that it was unfair that Charlotte and Joseph, in inheriting equally in Michael’s estate, would thereby receive a portion of Julie Gymer’s £170,000 estate.
Beverley claimed that Julie knew of the affair from 1998 and it was argued that if Julie had wanted to direct her estate to her children, she would and should have made a Will. Meanwhile, Gregory and Lee argued that Julie would never have agreed to leave her estate to Michael’s love children.
Decision
The judge was not convinced by Beverley’s account that Julie knew of the affair, stating that it was unlikely that Julie would have kept this secret from her own children as she had been so open with them during her life. The judge held that that the five children are “all perfectly innocent of their father’s deceptive conduct, which has created the unfortunate mess now before us.” It was held that since Charlotte and Joseph had no reasonable expectation of inheriting from Julie as they were not her children nor acknowledged as or treated as such – they had no relationship and Julie had no responsibility to them.
In the judgement, the £170,000 funds which Michael inherited from Julie were therefore removed from the court’s calculation as to the fair way to distribute Michael’s estate. The court considered each of the children’s financial needs. Gregory and Lee were awarded a third each of the Gymer’s joint wealth. Meanwhile, Shelley, whose financial needs were deemed to be lesser than that of her brothers, and the half-siblings were each awarded £58,000.
Scottish Dimension
What Mr and Mrs Gymer would have truly wanted to have happened to their estates can of course never be definitively determined but had they lived in Scotland, the situation would have had a very different outcome.
If Mrs Gymer had lived in Scotland, then it seems likely that her whole estate would have go to her husband anyway under his entitlement in terms of Scottish intestacy law. Michael would be entitled to up to £473,000 for any aspect of the family home held in Mrs Gymer’s name, up to £29,000 worth of household furniture and contents, and up to a £50,000 cash sum. Once these caps are exhausted, the next in line to inherit remaining assets in an intestate estate are the children of the deceased. Children of the deceased (whether born within marriage or outside of marriage) are entitled to a portion of the moveable estate (the bit excluding any heritable property). This increases to a share of one half of the moveable estate where there is no surviving spouse. Given the value of her estate and her husband preceding rights, the children would have probably received nothing from that estate.
Had Michael died domiciled in Scotland, the governing law would be the Succession (Scotland) Act 1964. On Michael’s death, the Scottish intestacy rules operate much like the default English position. His five children would equally share his entire estate (including anything he had inherited from his wife), worth £460,000. There is no equivalent statute to the 1975 Act in Scotland. The Scottish law does not account for an “equitable” division where some of the children are born to a marriage, and some are not. All children of a deceased are treated equally and the concept of anything other than a straight arithmetical calculation is an anathema under Scots Law.
If There Had Been Wills
At the heart of this sad situation, is the absence of Wills, especially by Julie. The importance of having a Will cannot be understated. Having conversations with your loved ones about what your wishes are once you pass away are difficult but essential.
Had Michael and Julie Gymer discussed their wishes, perhaps Michael could have made provision in his Will to direct his late wife’s estate to their three children after his death. He could also have made suitable provision for his other two children. Litigation in the Gymer case, while being a valuable example to the legal profession, could have been avoided which could have reduced further stress and upset during the children’s bereavement. Scotland’s unique forced heirship rules known as Legal Rights mean that so long as you have moveable assets, your children and spouse will always have a claim to one third (or in the case of children, one half, where there is no surviving spouse) of such assets that you have at the time you die. By doing so they renounce any entitlement they have under your Will, so the situation only really arises where a child or spouse do not properly benefit under a Will’s terms already.
There are however ways to defeat / limit Legal Rights if it is a concern but that requires careful planning. Legal Rights cannot be limited or extinguished under the terms of the actual Will and so if you have not planned properly, the terms of your Will can be significantly disrupted by a child or spouse claiming their Legal Rights.
As always, it is best to get professional advice for your individual circumstances when it comes to succession planning and preparing Wills. Contact a member of our Private Client team on 03330 430150 for advice or to arrange an appointment.
