Is a gift under a Will affected by a change of gender?

One issue within the transgender community is whether a person is able to inherit under a Will if their name and/or gender no longer matches that which is written in the Will. For example, a Will might read: “I leave 50% of my estate to my son John Smith”. If John Smith is now living as Susan Smith, would Susan Smith be able to inherit 50% of the estate?

Usually ambiguities in Wills are resolved by looking back at the intention of the person who made the Will. So you might expect that a person who is unhappy about their son’s gender change could then specify that John Smith can only inherit as a man and not if he is living as a woman. Generally, conditions that restrict marriage, promote divorce or that impose conditions about the practice of a particular religion will be found to be void. It is very likely therefore that a gift in a Will that is conditional on a person not changing their gender would also be found to be void.

Until 2004, transgender individuals were not formally recognised by English law in their acquired sex. The Gender Recognition Act 2004 (GRA) allows transgender people to apply to the Court for a Gender Recognition Certificate (GRC) to be fully recognised in law in their new gender, provided they meet certain criteria. Wills made after this date would therefore legally recognise a beneficiary in their acquired gender.

If an individual decides to write a son or daughter out of their will because they are opposed to their gender change, that child may still be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 upon their death, if certain grounds are met.

Clients are advised to update their wills regularly to ensure that it meets their wishes and to reduce the possibility of any uncertainties arising once they are gone.

For more information on the issues outlined above, please call 0113 201 4900 to speak to a member of the team or email wills.probate@emsleys.com.