Your Will and a Transgender Beneficiary

13th February 2018

The recent ITV documentary series “Transformation Street” which followed men and women as they transitioned from one gender to the other, made me think about how this might affect a person’s Will, in particular, whether a change of gender, or accompanying change of name, could cause a problem.

The Gender Recognition Act 2004 provides that when a full gender recognition certificate has been issued to a person, the acquired gender is that person’s gender for all purposes, subject to certain exceptions.  This principle applies to gifts under Wills made on or after 4 April 2005.

Let’s say Fred, who has two sons Adam and Ben and two daughters Claire and Diane, makes a Will leaving “50% of his estate equally between his sons and 50% equally between his daughters”.

After the Will is made Adam transitions from being a male to being a female by changing his name to “Adele”, dressing as a woman, undergoing treatments and operations to alter his physical appearance and obtains a gender recognition certificate.

If Fred made his Will before 4 April 2005, the date the Gender Recognition Act 2004 came into effect, for succession purposes Adele would be recognised by what is on her birth certificate, so she would be treated as a son and therefore the estate would be divided 50% between Adele and Ben and 50% between Claire and Diane.

However, if Fred’s Will was made after this date then the law provides that for succession purposes the estate devolves in accordance with your acquired gender.  So the estate would be divided as to 50% to Ben and 50% equally between Adele, Claire and Diane.

A Will should leave the executors in no doubt about who is to benefit.  In my example the share the children inherit depends on whether they are a son or a daughter.  If instead the Will had said “50% equally between Adam and Ben” then the gift to Adam may not fail on the basis that Adele can prove that she was previously Adam.  Clarity could also be achieved by referring to Adele by both her current and previous names, but this might not be what Fred or Adele would want.  Another option would be for Fred to ensure that his Will uses gender neutral wording, such as “my children”.

The executor of Fred’s Will is not under a duty to enquire before distributing the estate whether a gender recognition certificate has been issued to Adele.  Nor is the executor liable if he distributes the estate wrongly because he has not received notice.  But if the executor distributes the estate wrongly then the correct beneficiary can trace the assets in some cases.

If Fred died, having made his Will after 4 April 2005, then Adele could apply to court on grounds of being adversely affected because the devolution of her father’s estate under the Will is different to what it would have been but for her gender reassignment.  Another option would be for Adele and her siblings, if they agreed, to enter into a Deed of Variation following Fred’s death to vary the distribution of the estate so that it achieved the 50:50 division originally intended.

For more information on any of the aspects above please contact Alison Craggs or another member of the Succession and Tax team.