Gender reassignment - gifts in wills

Since 2004, individuals have been able to apply for a gender recognition certificate which recognises their change of gender for legal purposes. This applies to gifts under wills made on or after 4 April 2005. Below is an example of how some difficulties can arise.

Harry and Sally had two sons, Henry and Hayden, and two daughters, Serena and Samantha. Harry and Sally make mirror wills leaving 50% equally between their sons and 50% equally between their daughters.

Some years later after the will is made, Samantha transitions from female to male and is then known as ‘Sam’. He obtains a gender recognition certificate.

What happens if you make a gift to a transgender beneficiary?

If Harry and Sally made their wills before 4 April 2005, Sam would be recognised by what is on his birth certificate, so he would be treated as a son. The estate, therefore, would be divided as above and effectively equally between all the 4 children. 

But if Harry and Sally’s wills were made after 4 April 2005, then the law provides that the estate will pass according to the new acquired gender of Sam. As Sam is now legally recognised as a man, 50% would pass to Henry, Hayden and Sam and the remaining 50% will pass to Serena. 

It is highly likely that this was not what was intended, and as such it is very important how the will is drafted. If Harry and Sally’s wills had named their children, then the gift may not have failed, even if Samantha had chosen a completely different name. This is because the beneficiary can be easily identified, even though their name or gender may have changed.  Alternatively, we recommend using gender neutral language, for example; ‘my children’.

If Harry and Sally had made their wills after 4 April 2005 by reference to their children’s gender as above, then Sam could apply to the court to alter the disposition of the estate as it sees fit, enabling the court to rectify a failed gift and divide the estate equally. An application to the court can be avoided if there is agreement amongst the siblings.

If you are affected by any of the issues raised here, get in touch with me on 01245 453835 or claire.read@birkettlong.co.uk.

Birkett Long offers free statutory declarations relating to gender recognition certificates. To find out more email enquiry@birkettlong.co.uk