Stonewall estimates that around 1% of the UK population may currently identify as transgender, including those who identify as non-binary. That would mean there are about 600,000 trans and non-binary people in Britain, out of a population of over 60 million. As a result of this emerging phenomenon, many people will now find that they wish to leave a gift in their Will to a transgender beneficiary.
Gender Recognition Certificates
‘Gender dysphoria’ describes a sense of unease caused when someone feels there is mismatch between their biological sex and their gender identity. If a person is medically diagnosed with gender dysphoria then they can change their legal gender by meeting the requirements set out in the Gender Recognition Act 2004. Ultimately, they will then receive a Gender Recognition Certificate, which formally changes their birth certificate. The requirements are fairly onerous: in order to do so, they will need a report from a doctor detailing any medical treatment they have received, proof that they have lived for at least two years in their acquired gender, a statutory declaration confirming that they plan to live in their acquired gender until death, and if married, the consent of their spouse. By 2018 a total of 4,910 trans people had been issued with a Gender Recognition Certificate to certify their new gender.
For clarity, refer to your transgender beneficiary by name in your Will
How will a transgender beneficiary affect my Will?
So what are the implications if you wish to include a transgender beneficiary in your Will? If a beneficiary changes their gender between the date of your will and your date of death, this could affect the distribution of your estate. Section 9(1) of the Gender Recognition Act 2004 set out that once somebody acquires a full Gender Recognition Certificate, their gender becomes their acquired gender “for all purposes”. This means that if for example you were to make a gift in your will to “my daughters”, that gift could either inadvertently benefit somebody who was formerly your son, or conversely it could fail to benefit a former daughter. Equally, if you were to make a gift to “my eldest son” then the acquisition of a Gender Recognition Certificate by your son in the meantime could mean that his gift would either fail or pass to somebody else entirely.
Clear drafting is of the essence here, and it would be well worth reviewing your existing Will if you have included a transgender beneficiary, in order to ensure that your Will will still work as you had intended. Gender-specific drafting such as in the examples set out above is admittedly unusual, and is perhaps more likely to be found in homemade Wills. Much more typically, a gift in a professionally-drafted Will might be addressed to, for example “my children”, which covers all eventualities (including any illegitimate or adopted children.)
The good news is that if you specifically name a beneficiary in your Will, but they then go on to change their name and gender before your death, the gift to that person will still take effect. This is because the Will has expressed a clear intention to benefit that person in particular, as long as the beneficiary is able to verify that they are indeed the same person referred to in the Will.
Chiltern Wills is a Will writing business based in Beaconsfield and run by former London solicitor, Rebecca D’Arcy. Email us on info@chilternwills.com or call 01494 708688 to discuss how we can help with Wills, Powers of Attorney or Probate.
