The impact of gender reassignment surgery on gifts in Wills

10/02/2020

When a person undergoes gender reassignment surgery it can raise questions as to whether they still inherit if a Will refers to their birth name and previous gender. Should their parents change their Wills to reflect their child’s change of name and gender?

The Gender Recognition Act 2004

The Gender Recognition Act 2004 (GRA) provides assistance on the above issue. Section 1(1) of the GRA allows a person of either gender, who is at least 18, to apply for a gender recognition certificate on the basis of living in their changed gender for at least two years.

Provided the Will has been executed after 4 April 2005 and the person has been issued with a gender recognition certificate, the acquired gender is that person’s gender for all purposes (subject to certain exceptions). It follows 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.

The wording in a Will referring to the identity of a beneficiary should be carefully considered in all cases. Provided it can be verified that the person referred to in the Will is the same person as the person who has undergone gender reassignment, the Executors of the Will are obligated to distribute the gift to that person.

For Wills executed prior to 4 April 2005, it is advisable that the parents of a child who has undergone gender reassignment have their Wills reviewed to ensure their child will still benefit in light of the change of gender.

How should a Will refer to a transgender beneficiary?

Not all people who consider themselves transgender will undergo surgery to bring their bodies into alignment with their gender identity. They may take hormones and dress according to how they identify. When a person is transitioning it is not a one step procedure but a complex process that occurs over a long period of time. This can cause legal complications when considering how to describe a transgender beneficiary in a Will.

It is best practice to ensure the Will is drafted to make certain the beneficiary is clearly identified and leaves no doubt about who the beneficiary is.This may involve referring to the beneficiary by their birth name as well as their chosen name. Using gender neutral expressions such as ‘my child’ is also suitable as this is not gender specific.

Careful discussion with the testator as to how best to clearly identify the beneficiary without causing unnecessary distress is essential.If a person obtains a gender recognition certificate then they have the right to seek a Court Order under section 18 of the Gender Recognition Act 2005 if they are denied a benefit under a Will. However, to avoid any potential legal action at a later date, parents of a transgender child should have their Wills reviewed in order to ensure their child will benefit from their estate during the transition.This article was written by Kayleigh O’Donnell, Senior Associate in the Private Client Team at Pinney Talfourd LLP. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of February 2020.​

10/02/2020

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