As an estate planner you may come across a scenario where a client may wish to gift to a beneficiary who is transgender. As society’s understanding of transgender and non-binary identification continues to grow, it is important to ensure any estate planning documents also reflect the same to ensure the identities of the beneficiaries are both respected and reflected correctly. Failing to do so could lead to disputes post death as to who should have benefited from the gift, possible exclusion of that person when that was not the testator’s intention at the time of taking the instruction or offence. Careful drafting is therefore required.
Gender Recognition Act 2004
Since The Gender Recognition Act 2004 (GRA 2004) was introduced, individuals who meet certain requirements have been able to apply for a gender recognition certificate which recognises their acquired gender for legal purposes. This means that a person who has obtained a gender recognition certificate (GRC) is treated as their acquired gender.
Therefore, for Wills created after 4th April 2005, a beneficiary’s gender is recognised based on their GRC status. However, for Wills written before this date gender is determined based upon the birth certificate, regardless of whether that individual recognises themselves and identifies as another gender.
Considerations
There may be occasions where the beneficiary is living as their acquired gender but has not yet obtained a GRC. Care needs to be taken here as it is important to be sensitive to the beneficiary’s identity whilst at the same time being correct as the law requires as the Will is a legal document. The issue is two-fold; what name should they be referred to by, and what gendered language should be used, if any?
If the beneficiary is going by an alternative name but they have not legally changed their name then the Will would need to refer to them by their current legal name at least once. It is fine to then refer to them by their chosen name thereafter. This can be done by referring to the legal name in the will firstly alongside their chosen name as ‘also known as’.
If the beneficiary has formally changed their name, such as by deed poll, then they can of course be referred to in the Will by that name.
Gendered language is often used in wills and does not usually create a problem or cause any offence. In circumstances where a person’s legal gender and the gender they identify as differ this type of language can be problematic. Using gender-neutral expressions such as “my child” could be used rather than “my son” or “my daughter”. This avoids any offence caused in referring to a transgender beneficiary by the gender they are legally recognised as at the time of writing the will, rather than the gender they identify as. Care should also be taken as to the pronouns used where the beneficiary does not have a GRC. In this instance it would be best to check with the beneficiary their preferred pronouns or use the terms “they/them.”
What drafting issues can arise?
Example 1:
Emily has 3 children. At the time of drafting the will they are known as Miles, Jack, Bella and Danielle. Her Wills gifts her residuary estate 50% to “my sons” and the other 50% to “my daughters”.
After the Will is signed, Miles obtained a GRC and now goes by the name of Grace.
If Emily had written her Will prior to the GRA 20024, Grace would still be recognised by what is on her birth certificate. She would therefore still be treated for inheritance purposes as Emily’s son and the estate would be shared accordingly. If Emily had written her will after the GRA 2004 then Grace would instead fall into the category of “my daughters” instead, unbalancing what was previously an equal inheritance.
If a gender-neutral term was used such as “my children” then the estate would have been shared evenly regardless of Grace’s change of gender.
Example 2:
A Will is drafted gifting the residuary estate to “my daughters” but later one of the daughters acquires a GRC and becomes legally recognised as male. If the Will was signed after 4th April 2005, the gift to the daughter who is now recognised as male would be unaffected as long as the Will pre-dated them getting their GRC.
However, if the Will was executed before 4th April 2005 the gift to them would fail.
Summary points to consider:
- Ensure the correct names and pronouns are used.
- Consider gender neutral terminology when drafting.
- Ask if the beneficiary has changed their name by way of a GRC.
- Ask to see a copy of the GRC, or in some way confirm whether they have obtained one.
- Check the clause you have drafted is correct and does not exclude the beneficiary from the gift if the intention was that they benefit from it.
- Take care when drafting class gifts.
- Ensure detailed notes are taken.
