A will must accurately reflect a client’s identity, relationships and wishes. While that is true in every case, additional care may be required where a testator or beneficiary is transgender or non-binary. When completing estate planning for transgender and non-binary clients, additional drafting considerations may arise where a person has changed their name, uses a name that has not yet been formally adopted, has obtained or may obtain legal gender recognition, or has concerns about privacy or family conflict.
Estate Planning for Transgender and Non-Binary Clients: Legal Background
It is helpful to consider how the law deals with changes of name and gender.
Changing Name
A person can generally change their name without a court order. This is commonly done by deed poll or statutory declaration. Once a name has changed, the individual can ask banks, HM Land Registry, HM Passport Office, pension providers and other organisations to update their records, subject to their evidential requirements.
Changing Gender
Changing legal gender is a separate issue. Under the Gender Recognition Act 2004, a person may apply for a Gender Recognition Certificate (GRC). If a full GRC is granted, the person is legally recognised in their acquired gender for most purposes, and may obtain a new birth certificate where their birth was registered in the UK.
Where a testator or beneficiary has obtained a GRC, drafting is generally more straightforward, as their acquired gender is recognised as their legal gender for most purposes.
Where no GRC has been obtained, it will be more complex as the person’s legal gender will not reflect their lived identity. This creates a drafting difficulty, particularly where the testator does not know whether a beneficiary has obtained a GRC and the testator and drafter must decide how that beneficiary should be identified.
Non-Binary
The law recognises only male and female legal genders and there is no legal recognition of a non-binary gender. A non-binary person may use a name, title and pronouns that reflect their identity, but there is no corresponding legal status.
Confidentiality
Section 22 of the Gender Recognition Act 2004 may make it a criminal offence for a person who has acquired protected information in an official capacity to disclose it, unless an exception applies. The section is technical and does not apply to every item of information about a person’s gender identity. Even where section 22 is not engaged, advisers should treat such information as highly confidential.
Discrimination
The Equality Act 2010 may be relevant to the way in which estate planning services are provided. Advisers must not discriminate against on grounds including gender reassignment. Protection applies where a person is proposing to undergo, is undergoing, or has undergone a process for the purpose of reassigning sex, and does not depend on medical treatment, surgery or obtaining a Gender Recognition Certificate. Advisers should therefore provide advice and drafting services in a way that avoids discriminatory treatment and respects the identity of the person concerned.
That is distinct from the testator’s own testamentary freedom. A testator is free to decide who should, or should not, benefit from their estate. If a client wishes to exclude a transgender beneficiary, even because of the client’s personal beliefs, the adviser’s role is not to override that decision but to ensure that the client has capacity, understands the consequences, is not acting under undue influence, and that the will is drafted clearly. The client should also be aware of the potential risks of an excluded person bring an application under the Inheritance (Provision for Family and Dependants) Act 1975 for lack of reasonable provision where relevant.
Core Drafting Principles
Estate planning for transgender and non-binary clients will involve balancing three considerations:
- Certainty: the testator and beneficiaries must be clearly identifiable.
- Privacy: the will should not disclose sensitive personal information unless necessary.
- Respect: names, titles and pronouns should reflect the individual’s identity where possible.
This balance is important because a will becomes a public document after probate. Including unnecessary information about a previous name or gender history may therefore have wider consequences.
In some cases, including more than one name may be necessary to ensure clarity. In others, a person can be identified by their chosen name together with their relationship or address.
Identifying a Transgender or Non-Binary Testator
A will must identify the testator clearly. Where a client has formally changed their name, the starting point will usually be to use their current legal name. The question is whether a reference to a former name is required.
Where assets remain held in a former name, or records have not yet been updated, including a former name may assist the executors. For example:
“I, Alex Morgan, of [address], formerly known as [former name], declare this to be my last will.”
However, this will not always be appropriate. A former name may reveal sensitive personal information and will form part of a public document after probate.
Where a client does not want a former name included, alternative approaches may include:
- retaining evidence of identity on file;
- preparing a confidential note or letter of wishes for the executors;
- ensuring executors know where relevant records are held; and/or
- encouraging the client to update records during lifetime where possible.
Where a testator uses a chosen name but has not formally changed it, both names should be included where necessary. For example:
“I, Alex Morgan, of [address], being the person currently identified in official records as [Legal Name], declare this to be my last will.”
Alternatively:
“I, [Legal Name], also known as Alex Morgan, of [address], declare this to be my last will.”
The second form may be more administratively straightforward where assets remain in the legal name. The first may better reflect the client’s identity while still providing clarity.
Titles, Pronouns and Gender-Neutral Drafting
Titles such as “Mr”, “Mrs”, “Miss” and “Ms” usually are matters of social usage rather than proof of gender. A formal process is not usually required to adopt a different title.
For non-binary clients, the title “Mx” is increasingly used. Many organisations recognise it, although systems are not always consistent. Estate planning documents should reflect the client’s preference where possible.
In wills, however, the simplest approach is often to omit titles and use full names. That is not possible in Lasting Powers of Attorney however and titles are required in the forms.
Consideration should be given to what pronouns are used for a person. Where a beneficiary or testator uses “they/them”, the drafting can accommodate this. Difficulty can arise where a transgender person has not yet obtained a GRC and their legal gender is different to the gender they are living as. In such case it is likely better to use gender neutral language or omit pronouns entirely and draft using the person’s name or a defined term.
For example:
They/them Pronouns
“I give my collection of jewellery to my child Hayley Smith if they survive me by 28 days.”
Use of name
“I give my collection of jewellery to my child Hayley Smith if Hayley Smith survives me by 28 days.”
Defined term
“In this will, ‘Hayley’ means my child, Hayley Smith. I give my collection of jewellery to Hayley if Hayley survives me by 28 days.”
Drafting Gifts to Transgender and Non-Binary Beneficiaries
Similar issues arise when drafting gifts. A beneficiary may have changed their name formally, may be using an acquired name without formal change, or may be known differently within the family.
If a will uses only a previous name, this may be distressing and may create practical difficulty. If it uses only an acquired name that is not reflected in official records, there may be uncertainty.
The drafting should be tailored to the circumstances.
Where a formal name change has not taken place, one option is to include both names within the gift:
“I give £10,000 to my child, Robin Smith, also known as Hayley Smith.”
Alternatively, a clarity clause may be used where the name appears more than once:
“My child Robin Smith uses the name Hayley Smith, although they have not legally changed their name. I wish to honour that choice of name. For clarity, in this will, any reference to ‘Hayley Smith’ means my child Robin Smith.”
This can reduce the risk of dispute as to identity, but may also disclose sensitive personal information. The balance between clarity and privacy must be applied.
Take Care With Gendered Class Gifts
Care should be taken with class gifts based on gendered descriptions. A gift to “my nephews” or “my granddaughters” may create uncertainty or produce outcomes that do not reflect the testator’s intentions if a beneficiary changes gender or where the client is uncertain of a person’s current legal gender.
In the context of estate planning for transgender and non-binary clients, it will often be preferable to use neutral class descriptions, such as:
- my children;
- my grandchildren;
- my siblings; or
- my descendants.
Using a Discretionary Trust to Protect Confidentiality
In some cases, there will be a tension between identifying a beneficiary clearly and preserving confidentiality. This may arise where a beneficiary uses an acquired name, has not formally updated records, or does not wish personal information to appear in a public will.
A discretionary trust may be considered in these circumstances. The will can define a class of potential beneficiaries, with further guidance provided in a separate letter of wishes.
For example, the will may refer to:
- “my descendants”; or
- “my sibling’s children and their descendants”
The letter of wishes can then set out more detailed guidance. For example:
“One of the principal reasons for creating the discretionary trust is to benefit my child, who is currently legally known as Robin Smith but uses the name Hayley Smith. I wish my trustees to respect and honour that name. My primary wish is that Hayley Smith should be treated as a principal beneficiary of the trust.”
This allows sensitive information to be kept outside the will while still guiding the trustees.
However, care needs to be taken when drafting the class as the intended beneficiary must fall within the class specified , and a letter of wishes cannot extend that class. There may be a power to add beneficiary but that then adds an additional barrier of ensuring that power is exercised by the trustees or whichever person is given that power.
The letter is also not legally binding. Trustee selection is therefore vital. Trustees should be willing to follow the intended wishes, respect confidentiality, use appropriate names and pronouns, and administering the trust without unnecessary disclosure.
A discretionary trust may be particularly appropriate where:
- the beneficiary has not formally changed name;
- official records do not reflect their identity;
- confidentiality is a priority;
- there is a risk of family conflict; or
- flexibility is required.
Funeral Wishes and Post-Death Identity
Funeral arrangements may be of particular importance. A client may be concerned that, after death, relatives may revert to a previous name or use language or presentation inconsistent with their identity.
Funeral wishes in a will are not legally binding, but they can provide useful evidence and guidance. A separate letter of wishes may also be appropriate. This can address:
- the name and pronouns to be used;
- who should arrange the funeral;
- who should or should not be involved;
- clothing and presentation;
- whether any reference should be made to gender history; and
- any other personal preferences.
In practice, the choice of executor will be as important as the wording. An executor who understands and respects the client’s wishes is more likely to ensure they are followed.
Estate Planning for Transgender and Non-Binary Clients: Conclusion
Estate planning for transgender and non-binary clients often requires careful drafting. A well-drafted will should identify the testator and beneficiaries clearly, avoid unnecessary disclosure and appoint executors or trustees who are capable of carrying out the client’s wishes properly.
Where appropriate, clarity clauses, gender-neutral drafting, letters of wishes and discretionary trusts can all play a useful role.
The aim is to create legally valid documents while also being respectful of the identity and dignity of those involved.
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This article is provided for general information only and does not constitute legal advice. The examples of wording and clauses included are illustrative only and should not be treated as precedent wording suitable for use in any particular matter without full consideration of the client’s circumstances, the terms of the will as a whole, and the applicable law at the relevant time.
No responsibility is accepted for any reliance placed on the example clauses or suggested wording in this article. The suitability and legal effect of any clause will depend on the specific facts and the wider drafting context.
