The Effect of the Gender Recognition Act on Wills

Where a Will has been made prior to 4th April 2005, a change to a person’s gender will not have any effect on the distribution of specific assets and property under the Will.

For example; if a situation were to arise where your Will was made before 4th April 2005 leaving an asset to your eldest son (who is now legally recognised as a woman) then that child would still receive the asset you gifted them under your Will.

However, for Wills prepared on or after 5th April 2005 the Gender Recognition Act provides that a person’s gender changes for all legal purposes.

Therefore, if you have a child who identifies as male (formerly your eldest daughter), and they are your oldest living child at the time of your death, then they would inherit the gift intended for your "eldest son".

Should this ever happen, the child who has been adversely affected could apply to the Court to prove themselves as the intended recipient of the gift. The Court would then have the final say as to how the property is distributed, but such applications will take time and can be expensive.

What Should I Do?

When preparing a Will, it is important to seek legal advice to ensure that such issues do not arise.

Your legal advisor should ensure that the intended beneficiary is clearly identifiable i.e. they might name them rather than referring to them as ‘my eldest son’. But also, it is important that you keep your Will under review so that if a beneficiary does change gender, you can amend your Will accordingly.

It may also be appropriate to use gender neutral expressions, such as ‘my child’ or ‘my children’, rather than referring to them using gender specific expressions like ‘my son’ or ‘my daughter’.

Naming beneficiaries is often the best way to ensure clarity, and where names have changed over time, a paper trail can usually be used to identify the correct beneficiary.

Your Will should be reviewed regularly, ideally every few years or sooner if circumstances change.

How Can Timms Help?

If you would like any further information about preparing your Will, please contact me via email at m.insley@timms-law.com or by telephone on 01283 561531.