At WillPack we get a large number of technical queries from our partners. This means the team is often looking into very varied and interesting areas of law. In this feature of the newsletter we will focus on some our more unique queries and pass that knowledge on to you!
This week, we will look at how a transgender testator or beneficiary is best referred to in a will.
The Gender Recognition Act 2004 allows a person who has lived as the other gender or who has changed gender under the law of another country or territory outside of the UK to apply for a Gender Recognition Certificate. This will be granted if the person applying:
- Has, or has had, gender dysphoria;
- has lived in the acquired gender for two years ending on the date the application is made;
- intends to continue to live in the acquired gender until death; and
- complies with certain evidential requirements.
The effect of obtaining a Gender Recognition Certificate is that the person applying is treated as their acquired gender. They are also entitled to a new birth certificate.
How should the person be referred to?
When taking instructions, the first question is to ascertain what the beneficiary or testator’s current legal gender is. You should ascertain if this person has obtained a Gender Recognition Certificate. If they have obtained this, they will now be their new acquired gender and can be referred to as such.
If the person has not yet obtained a Gender Recognition Certificate they will still be treated as their birth gender. Of course referring to this person as their birth gender in the will could cause offence and to avoid this, gender neutral terms could be used to refer to that person (such as my spouse, my child or my sibling). Care should also be taken with use of pronouns; it may be desirable to not use any pronouns when referring to this person and only ever refer to them by their name.
You will also need to ascertain whether the person has changed their name. If they have not obtained a Gender Recognition Certificate, you should clarify whether they have legally changed their name as they may have changed their name but not their gender currently.
In the case of a testator who has changed their name, you may wish to include that they were previously known by their former name if they still have assets in the previous name.
Should an existing will be changed to take into account a change of gender?
A testator’s existing will may not need to be changed to take into account a change in the testator’s gender and provided that they have no other changes they wish to make the will could be left as it is. You may however wish to make this change so that the testator is content.
Whether to change a will to take into account a beneficiary changing gender is likely to depend on the circumstances of the gift. A gift that refers to a beneficiary’s name would not necessarily need to be changed, although the testator may wish to do so.
A gender specific class gift may need amending to take into account a person joining or leaving that class. For example, a class gift to ‘my daughters’ might need amending if a child changes gender from female to male to ensure that child is still included in the class. Alternatively, if a child changes gender from male to female the gift may need to be amended if the testator does not wish for this child to be included in that class. WillPack partners may wish to seek our advice in these circumstances to confirm whether the will should be changed.