The Gender Recognition Act 2004 and Will Drafting

The Gender Recognition Act (GRA) 2004 enables a transgender person to apply to change their legal gender.  Once a transgender person has completed the process set out in the GRA, they will be issued with a Gender Recognition Certificate and a new birth certificate which legally recognises their gender identity from that moment forward.  However, the GRA also makes provision for how the issuing of a Gender Recognition Certificate may alter the dispositions made by a person’s will. 

In relation to wills, section 15 of the GRA provides that when a person legally acquires a different gender, the acquired gender does not affect a person’s beneficial entitlement under ‘a will or other disposition made before’ the GRA came into force.  However, for wills made after the GRA came into force on the 4 April 2005, the explanatory notes to the GRA state that:-

‘if a will refers to the ‘eldest daughter’, and a person who was previously a son becomes the ‘eldest daughter’ following recognition in the acquired gender, that person will inherit as the ‘eldest daughter’.’ 

If a person has been negatively affected by the application of the GRA, then there is provision within the Act for them to make an application to the High Court to seek a variation of the will. 

Whenever considering the preparation of your will, clear and precise drafting is incredibly important to ensure that your wishes are carried out and your beneficiaries are correctly identified.  The use of legacies which leave gifts under your will to a beneficiary or a class of beneficiaries based on gender should be avoided.

If a beneficiary under your will identifies as transgender, it is important to speak with them about this process to see whether the terms of your will need to be reviewed to appropriately provide for them.  This conversation is especially important as the UK Government set up a consultation in 2018 which found that since the GRA came into force, only 4,910 people had obtained a Gender Recognition Certificate.  However, the same report estimated that between 200,000 and 500,000 people identified as transgender.  This means that only a small proportion of trans people obtain a Gender Recognition Certificate.