Will drafting considerations for transgender and non-binary beneficiaries

June is ‘Pride Month’, a month where the ‘LGBTQ+ community’ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning + community) is celebrated, and awareness raised about the various issues members of the community face. As Pride month draws to a close, taking time to look at what ‘Will Writers’ can do to promote equality and sensitivity in this area when drafting wills seems appropriate and necessary.

The focus for this article is on ‘Transgender and Non-Binary’ people as these are the two types of ‘Gender Identities’ that can cause drafting confusion. In some cases this has caused offence no doubt, and if care isn’t taken, the testator’s wishes might not be fully met and supported in the eyes of the law.

Persons who are ‘Non-binary’ identify as neither male nor female. ‘Non-binary’ is not legally recognised in the UK as a gender identity in its own right; this is despite a large petition asking for the extension of the ‘Gender Recognition Act 2004’ to include them. When drafting wills, it is common to refer to the testator, their executors, and their beneficiaries by their title (Mr, Mrs, Ms etc.). When drafting for a ‘Non-binary Testator’ or including a ‘Non-binary Beneficiary’ it may be more considerate to not include their title in order to be respectful to their gender identity.

Recently, as an alternative, the title “Mx” (pronounced “Mix”, also used: “Mixster”) is now widely accepted as a gender-neutral moniker. Many councils and institutions in the UK accept the use of this title, among them HMRC, the DVLA, the NHS, utility companies and most major banks, but to mention a few. The House of Commons also accepts the use of ‘Mx’ by MPs. Most titles (such as Mr, Ms, Miss, Mrs and Mx) are not controlled by law in the UK, however certain titles such as Dr, Prof, Lord, Sir, etc are controlled by law and you cannot change your title to them unless you are entitled to use them.

Since introduction of  ‘The Gender Recognition Act 2004’ (GRA 2004) individuals have been able to apply for a ‘Gender Recognition Certificate’ (GRC) which recognises their change of gender for legal purposes. This means that a person who has obtained such a certificate (GRC) is treated as their ‘Acquired Gender). I will use the term ‘Acquired Gender’ (AG) here as this is the term used in the GRA 2004.

Difficulties occur and ‘Drafting complications’ can emerge where a person mentioned in the will is living as their acquired gender (AG) but has not obtained a GRC. The will needs to be sufficiently clear in who it refers to. If they are defining themself by an alternative name, but have not ‘Legally’ changed their name, then the will would need to refer to them by their ‘Current Legal Name’, at least once. It is fine to then refer to them by their chosen name thereafter.

Correspondingly, ‘Gender-neutral Expressions’ such as “my child” could be used rather than “my son” or “my daughter”. This avoids any offence caused when attributing it to a transgender beneficiary by the gender they are legally recognised as at the time of writing the will, as opposed to the gender they identify as. Attention should also be paid to ‘Pronouns’. For a ‘Non-binary’ or ‘Transgender’ person with no GRC it may be best to refer to them only by name and avoid gendered pronouns completely, although this can make drafting clauses more cumbrous. Controversial with some linguists, but the adoption of ‘they/them’ as a ‘Singular Pronoun’ is on the rise as a means of referring to an individual without revealing their gender. It is also seeing some use as an alternative to ‘generic he’.

If a transgender person manages to acquire a GRC then the drafting issues highlighted here are lessened, because they are legally recognised, as their ‘Acquired Gender’.

The GRA 2004 applies to wills made on or after:

– 4th April 2005. The GRA 2004 does not affect a gift made under a will prior to 4th April 2005.

– It follows then that should a will, ‘Executed’ after 4th April 2005 make a gift to a class of beneficiaries such as “my sons”; a child of the testator who was born as his ‘Daughter’, but acquires a GRC and becomes legally recognised as ‘Male’, will benefit under that description and will take an equal share to the testator’s other sons.

– Had the will been executed prior to 4th April 2005 he would not have been added to the class and would not have benefitted.

The GRA 2004 provides some protection to beneficiaries who have changed gender since a will was made. It also provides some protection for ‘Personal Representatives’.

Under section 17 the ‘Personal Representatives’ (PR) are ‘under no duty’ to enquire as to whether a beneficiary has acquired a GRC. If this affects the distribution of the estate and as a result a transgender beneficiary does not receive the assets they are entitled to –  ‘they have no claim against the PRs personally for misadministration’.

The beneficiary can however trace the assets.

Under ‘Section 18’ the court also have powers to ‘vary the distribution’ of the estate where expectations are defeated by a beneficiary acquiring a GRC.

If you require assistance please do not hesitate to contact us.