WillsWill drafting considerations for transgender and non-binary beneficiaries

30th June 2021Siobhan Smith0
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June is Pride month, a month where the LGBTQ+ community is celebrated, and awareness raised about the issues members of the community face. As Pride month draws to a close a look at what Will Writers can do to promote equality and sensitivity in this area when drafting wills seems apt.

This article will focus on transgender and non-binary people as these are the two types of gender identities that can cause drafting confusion. In some cases this may cause offence, and if care isn’t taken the testator’s wishes might not be fully met.

A person who is non-binary identifies as neither male nor female. Non-binary is not legally recognised in the UK as a gender identity despite a large petition asking for the extension of the Gender Recognition Act 2004 to include them. When drafting wills, it is common to refer to the testator, their executors, and their beneficiaries by their title (Mr, Mrs, etc.). When drafting for a non-binary testator or including a non-binary beneficiary consider omitting their title in order to be respectful to their gender identity.

Alternatively, the title “Mx” is now widely accepted as a gender-neutral honorific. Many councils and institutions in the UK accept the use of this title, among them HMRC, the DVLA, and most major banks. The House of Commons also accepts the use of Mx by MPs.

Since The Gender Recognition Act 2004 was introduced individuals have been able to apply for a gender recognition certificate which recognises their change of gender for legal purposes. This means that a person who has obtained a gender recognition certificate (GRC) is treated as their acquired gender. I will use the term ‘acquired gender’ here as this is the term used in the GRA 2004.

Drafting complications can arise where a person mentioned in the will is living as their acquired gender but has not obtained a GRC. The will needs to be sufficiently clear in who it refers to. If they are going by an alternative name but 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.

Similarly, 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. Attention should also be paid to pronouns. For a non-binary or transgender person with no GRC it may be best to refer to them only by name and avoid gendered pronouns completely, although this can make drafting clauses more cumbersome. Controversial with some linguists, but the adoption of ‘they/them’ as a singular pronoun is on the rise as a means of referring to an individual without revealing their gender. It is also seeing some use as an alternative to ‘generic he’.

If a transgender person has acquired a GRC then these drafting issues are avoided as they are legally recognised as their acquired gender.

The GRA 2004 applies to wills made on or after 4 April 2005. The GRA 2004 does not affect a gift made under a will prior to 4 April 2005. It follows then that should a will executed after 4 April 2005 make a gift to a class of beneficiaries such as “my sons” that a child of the testator who was born as his daughter but acquires a GRC and becomes legally recognised as male will benefit under that description and will take an equal share to the testator’s other sons. Had the will been executed prior to 4 April 2005 he would not have been added to the class and would not have benefitted.

The GRA 2004 provides some protection to beneficiaries who have changed gender since a will was made. It also provides some protection for personal representatives.

Under section 17 the personal representatives are under no duty to enquire as to whether a beneficiary has acquired a GRC. If this affects the distribution of the estate and as a result a transgender beneficiary does not receive the assets they are entitled to they have no claim against the PRs personally for misadministration. The beneficiary can however trace the assets.

Under section 18 the court also have powers to vary the distribution of the estate where expectations are defeated by a beneficiary acquiring a GRC.

 

Photo by Cecilie Johnsen on Unsplash 

Siobhan Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as a member of the Society’s technical team. Siobhan is also the main tutor for the College of Will Writing’s 4 day introductory course, taught monthly at the College.

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