“My son has become my daughter – do I need to update my Will?”
This is just one of the questions we are beginning to be asked more regularly by clients. Although the Gender Recognition Act came into force in 2005, the law in this area is complex and fast-changing, particularly in relation to Wills and the administration of estates. As part of Transgender Awareness Week, we take a look at a few of the key questions to consider when preparing a Will for transgender clients and the issues our clients need to be aware of if they have transgender beneficiaries.
Change of name
“My child has changed their name – do I need to change my Will?” It is a very common question but gone are the days when a solicitor could assume that the client is referring to a change of surname on marriage or divorce. In such a case, it would be sufficient to ask the client to record the change in writing and a copy of the note could be kept with their Will.
Instead, it is increasingly common for a name change to be due to a change in gender – either following the formal process of having obtained a Gender Recognition Certificate (GRC) or through deed poll. If the name change is due to a change in gender, we would always advise reviewing your Will to check that your loved ones will benefit as you intend.
The key factors here will be the wording of the gift to your children and the date of your Will. The Gender Recognition Act 2004 (the GRA) came into effect on 4 April 2005. Prior to that date, a transgender person could live in their acquired gender socially but legally they would still be recognised by the gender assigned to them at birth. Suppose therefore that you have made a Will which provides for “my entire estate to be divided equally between my sons”. At the date of your death one of your children has transitioned from male to female and has obtained a GRC. If the Will is dated prior to 4 April 2005, your child that has transitioned will be treated for succession purposes as your son and would share your estate with her brothers. However, if your Will is dated after 4 April 2005 or you have made a later Codicil, she will inherit nothing. Our advice is therefore to review your Will and to consider referring to your children by name. If in the above scenario, your child had been referred to by name in your Will rather than as one of your sons, the gift is unlikely to fail as she would be able to prove her previous identity.
Making provision for children, grandchildren and remoter issue
With an increase in blended families, adoption and with more children being born as a result of fertility treatment, our number one piece of advice to clients is to be open about your circumstances when giving instructions for your Will, not just in relation to your own children but also any grandchildren and those further down the family line, known as “issue”.
Your solicitor will usually begin a Will meeting by asking you to give details of your family. Imagine Sally has four children. Audrey is her biological child from her first marriage, Ben is her adopted child from that same marriage, Charlie is the child of her new partner Lucy and they have recently welcomed Denise into the family. Denise was born through fertility treatment using Sally’s egg, implanted into Lucy’s womb. Sally considers herself to have four children and wants to leave her estate “equally between my four children”. If one of them has died before her, she wants to ensure that the gift will pass down the family line to her children’s children or remoter issue.
Audrey: Sally is Audrey’s biological birth mother so Audrey would fall into the definition of “children” under the Will and if Audrey has pre-deceased, her issue would inherit in substitution.
Ben: Adopted children are also treated for succession purposes as if the adoptive mother were the birth mother. Therefore Ben will also inherit from Sally’s estate as intended, as would his children or remoter issue in substitution.
Charlie: children of a partner do not fall within the definition of your “children” nor do step-children unless they have been adopted by the person making the Will. Therefore here, even if Sally and Lucy were to marry or enter into a civil partnership, Charlie would not benefit under Sally’s Will, nor would his children or remoter issue, as he would be Sally’s step-child not her child. To enable him to benefit he would need to be specifically referred to in the Will.
Denise: the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which came into force on 6 April 2009 and which applies to all children born after that date, states that “the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child”. Sally cannot therefore legally be Denise’s mother, although she may have acquired the status of “second parent” under the HFEA 2008 if:
(a) Sally and Lucy had been in a registered civil partnership or had been married at the time of the fertility treatment and Sally consented to the Lucy having the fertility treatment, or
(b) if unmarried and not in a civil partnership, Sally and Lucy had both consented to the fertility treatment in writing, and Sally and Lucy were not considered biologically close relatives for the purposes of the HFEA 2008
Therefore although Denise was born using Sally’s egg, if the above conditions do not apply and Sally has not adopted Denise, she would not be considered to be Sally’s child for succession purposes and Denise’s children and remoter issue would not benefit in substitution. The best solution here, as above, may be for Sally to name her four children in her Will.
“I would like to appoint my mother as the guardian of my children”
If one of your parents or grandparents has transitioned and you wish to benefit them under your Will, it is also crucial to disclose this history to the solicitor drafting your Will. Imagine that your birth father has transitioned from male to female, obtained a GRC and your birth mother has passed away. As time passes, you refer to your surviving parent as mother, grandmother etc, and tell your solicitor that you wish your mother to act as guardian for your children and for her to be a beneficiary under your Will. Even though your mother has formally changed her gender, it is important to note that, under the GRA, a transgender person’s legal status as the mother or father of a child will not change after a GRC has been issued. The woman who you now know as your “mother” will retain the legal status of “father” and this will need to be taken into account when your Will is prepared.
This legal position is currently being challenged in the courts but for now remains good law. The case concerns Freddy McConnell, a transgender man, who gave birth to his child but asked to be named as the child’s “father” or “parent” on the birth certificate instead of “mother”. His request was refused by the Registrar. The case came before the High Court in September 2019 and the court ruled against him with the judge stating that people who had given birth were legally mothers, regardless of their gender. Mr McConnell has now taken his case to the Court of Appeal.
The above are just three of the issues that can arise in this complex area of law and show that care needs to be taken when drafting Wills. It also illustrates the importance of giving your solicitor full details of your family’s history to ensure your Will reflects your true intentions. Alison Craggs, author of this article, is a nationally recognised expert in transgender law in relation to the drafting of Wills and the administration of estates. At Blake Morgan, our solicitors are experienced in dealing with sensitive issues and will deal with your matter professionally and in confidence.
If you are interested in reading more from Alison on issues that are mentioned in the above article please click on the links below;
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