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Succession Planning for the Modern Family – Wills, Probate and Transgenderism

16 Feb 2018

The law setting out how to make a valid Will dates back to 1837, whilst many of the rules dealing with the administration of a deceased person’s estate were set down in 1925.

Much has changed since then, no more so than family dynamics. In today’s society, divorce, remarriage, co-habitation and same sex marriages are all very common. As is the way in which we identify as individuals with regards to our gender.

Whilst the law has not kept up to speed in some areas (particularly in relation to the rights of co-habiting couples), transgenderism has received helpful consideration within the legal framework.

Following the introduction of the Gender Recognition Act in 2004, transgender people can apply for a Gender Recognition Certificate (“GRC”) to legally recognise their adopted gender. Whilst this is certainly good news for transgender equality, it can have serious consequences for Wills.

For example, if you are married and wish to obtain a GRC, you can remain married so long as your spouse consents to this. If not, then the marriage can be annulled. Should this arise it would be essential to ensure a new Will is put in place, as any existing Will may not be automatically revoked. In any event, obtaining a GRC often brings with it a change of name, which in turn should also prompt a review and general update of your Will.

If a family member were to obtain a GRC, then it would also be beneficial for you to review your Will. Whilst any Will made before 5 April 2005 will not be affected by the GRC, any Will made after this date will be. This will be the case if your Will included the description of a beneficiary which is gender specific, as their adopted gender could affect any entitlement they have under the terms of your Will.  Consequently, it is important for you to review your Will to ensure that any such GRC does not change the way in which you intend for your estate to pass.

Alison Hall web profile 2016

Whilst the Court does have the power to ensure a GRC does not adversely affect the position of a person with regards to inheritance, any ambiguity in the Will can cause great difficulty for executors when administering an estate.

As Executors are held personally liable for failings which occur when administering an estate, any confusion arising because a beneficiary has changed gender can lead to costly Court action in order to clarify the position.

Equally, if you are appointed as an Executor, it is strongly suggested that you seek legal advice before beginning the estate administration, to ensure no personal liability arises and to reduce the risk of any legal challenges being mounted by disgruntled beneficiaries, who may miss out due to having obtained a GRC or because of confusion surrounding the same.

At Hay & Kilner our experienced team of Solicitors can assist in the preparation of Wills to reflect ever changing family dynamics as well as provide advice to those acting as Executors to ensure Probate is correctly obtained, the Will accurately interpreted and the estate administered without error.

For further information on any of the above, or how we can help your business, please contact either Alison Hall or Alice Clewes, or telephone 0191 232 8345