Gender Recognition Certificates and Testamentary Impact

A beneficiary is an important part of a Will document; the decision on who it will be is one consideration but their basic information is also a factor to get exactly right and maintain its correctness as circumstances change in other people’s lives.

When preparing a Will, you need to pay careful attention to who you choose to be your beneficiaries but also how they are described within your Will.

Potential problems can arise if a beneficiary’s name is incorrect, or the prescribed class of beneficiaries is unclear.

We delve into more detail with one of our Wills, Probate and Trust specialists, Josef Lythe:

Indicating the appropriate gender for the beneficiary

One common area where this can become problematic is if one of your beneficiaries is transgender or has since transitioned after you made your Will.

This beneficiary will likely have changed their name meaning the name included in your Will may be incorrect.

It is crucial that any name of a beneficiary in your Will is correct as if not, this oversight may lead to a dispute after your death.

There are many things to consider when including a transgender beneficiary in your Will.

These considerations are important not only when making a new Will, but also when considering if your existing Will needs updating.

Gender Recognition Certificates and the Gender Recognition Act 2004

Has your beneficiary obtained a Gender Recognition Certificate (GRC) in the past?

This is a certificate that allows for a person’s acquired gender to be legally recognised. For example, obtaining a GRC allows a change to be made to a birth certificate to an affirmed gender and also to get married to the affirmed gender.

If the beneficiary has a GRC, Section 15 of the Gender Recognition Act 2004 (GRA) states that reference to the birth name and/or previous gender in a Will that pre-dates the gender change will not affect the validity of the gift to that person. This only applies to Wills executed after 4th April 2005 and therefore if your Will is older than this, we would strongly advise your Will to be updated to correct the name of your chosen beneficiary.

Additionally, under section 9 of the GRA, it is made clear that once a GRC has been issued that person’s gender becomes their acquired gender for all purposes.

This could be problematic if there is a gift within your will that refers to “my sons” or “my daughters”, for example.

What considerations should be made?

If you are planning on including a transgender beneficiary in your Will or have an existing Will that includes a transgender beneficiary, this will need to be given careful consideration to ensure there are no disputes after your death. This is important for both transgender beneficiaries who have GRCs and those who don’t.

How to avoid confusion?

It is best practice to ensure you are specific in your Will and it should leave your Executors with no doubt as to who your beneficiaries are.

This can be achieved by including the person’s chosen name. You may also wish to include their birth name; however, you will need to carefully consider whether this may cause any distress to the beneficiary being included.

Should you wish to include a class of beneficiaries rather than specific names then you should use gender-neutral wording such as ‘my children’. It may be best to avoid any gendered descriptions altogether to prevent any possible confusion.

We would also recommend reviewing your Will every five years or when a significant life event occurs. If a beneficiary changes their gender, then this is an event whereby your Will should be reviewed to ensure it is still suitable and clear.

The above advice is also relevant if you, as the Testator, transition to another gender and change your name.

In this situation, best practice would be to prepare a new Will in your new name. You may also wish to refer to your birth name if you feel comfortable doing so, as this would help eliminate any confusion or disputes after death and help if you held any assets in your former name.

How can Winns help?

If you have any concerns about your Will and the issues discussed within this article, then you can contact our Wills and Probate team, who are standing by to help.

With extensive experience in matters of Wills, Probate, and Trusts, we’re able to support and assist our clients across a range of subjects and circumstances.

Book a call today.

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