If one of your beneficiaries has changed their name and gender identity, it can be confusing to know if it will affect their inheritance. This is especially true if your Will lists them as a beneficiary under a different name.
If you have made a Will and one of your beneficiaries has since changed gender, it is important to understand what changes you might need to make. This ensures your full wishes are respected when you die, and your beneficiaries receive what they expect.
Gender Recognition Act 2004
The Gender Recognition Act 2004 came into effect on 4th April 2005. This changed the way that transgender beneficiaries are treated for the purposes of your Will.
The Act allows trans individuals who meet certain criteria to be legally recognised as a different gender from their birth gender. They can apply for a Gender Recognition Certificate, which changes their gender for most legal purposes.
So, a Will written before the Act treat may treat transgender beneficiaries differently to a Will written after the Act. That is because wills created before 4th April 2005 determine gender based on the birth certificate. Wills created after this date are based on the acquired gender.
How a Will may be interpreted differently: an example
Oliver has two sons, Harry and George, and two daughters, Willow and Emily. He wishes to create a Will leaving his Estate split 60% to his sons and 40% to his daughters. He could write '60% of my Estate is to go to my sons'.
George obtains a Gender Recognition Certificate and goes by Georgina after the Will is created. As written, the Will would give 60% to his son Harry and 40% to be shared between Georgina, Willow and Emily. If Oliver had written his Will prior to the Gender Recognition Act, Georgina would still be recognised by what is on her birth certificate. She would therefore still be treated as a son and the estate would be split 60% to Harry and Georgina and 40% to Willow and Emily.
Oliver can amend his Will following Georgina's transition. However, this isn't always possible, for example, if he has lost mental capacity.
An option Oliver has when creating his Will is to name the persons he wishes to benefit directly. E.g. '60% of my Estate is to go equally between Harry and George'. The gift to Georgina may still be valid if her Gender Recognition Certificate proves she was previously George.
If Oliver wanted, he could mention Georgina and her deadname but that may not be what Oliver wants. Oliver could also use a more gender-neutral term of 'my children', but it may not reflect his exact wishes.
If Oliver dies without updating his Will to reflect Georgina's transition, the family can complete a Deed of Variation. This allows them to alter the Will accordingly. However, all the beneficiaries and the Executors must agree to this.
Making your intentions clear
Making sure your Will is clearly written, so that it is easy to identify beneficiaries, is crucial.
Courts consider the intent of the Will, even if some details don't match. They also examine the wording to ensure probate carries out the person's final wishes.
If the intended beneficiary is unclear, the court may rectify the will or declare it invalid. Alternatively, the executor may misinterpret the intended beneficiary. As a result, the estate might be distributed incorrectly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
