Don't Judge by Appearance
By virtue of the Gender Recognition Act 2004 the United Kingdom now recognizes a change of gender as being permanent for all legal purposes. Specifically, the Act provides a framework for a person who is at least 18 years old to acquire a legally-recognized gender by making an application for a Gender Recognition Certificate on the basis of living in the other gender or having changed gender under the law of a country or territory outside the United Kingdom.
In an article by Jo Summers with the above-captioned title, published in the June 2006 edition of the Society of Trust and Estate Practitioners Journal, Ms. Summers outlines the consequences of acquiring a gender under the Act.
In the estates context, the Act does not affect Wills made before it came into force. For example, if a Will states that certain property is to go to "my son alive at the date of my death", and the child had become recognized as a woman under the Act, the child would be treated as a son and allowed to receive the gift if the Will was dated before April 4, 2005 (the date the Act came into force). However, if the Will was dated on or after April 4, 2005, the child would be treated as a daughter and disentitled to the legacy (depending on the wording of the gift).
Although this seems to be an unfair result for the intended beneficiary, the Act attempts to address it by allowing anyone who has been adversely affected as a result of the gender change to commence a court application for relief.
While I know of no similar legislation being contemplated in Ontario, given that Parliament has recently broadened its definition of a spouse, I expect it will not be long before gender change will be similarly acknowledged. Once that time comes, more care will likely be needed in drafting testamentary documents. Sensible solutions proposed by Ms. Summers are to avoid referring to beneficiaries by class and instead referring to them by name, and/or to insert a clause setting out the meaning of references to gender.
Natalia Angelini
In an article by Jo Summers with the above-captioned title, published in the June 2006 edition of the Society of Trust and Estate Practitioners Journal, Ms. Summers outlines the consequences of acquiring a gender under the Act.
In the estates context, the Act does not affect Wills made before it came into force. For example, if a Will states that certain property is to go to "my son alive at the date of my death", and the child had become recognized as a woman under the Act, the child would be treated as a son and allowed to receive the gift if the Will was dated before April 4, 2005 (the date the Act came into force). However, if the Will was dated on or after April 4, 2005, the child would be treated as a daughter and disentitled to the legacy (depending on the wording of the gift).
Although this seems to be an unfair result for the intended beneficiary, the Act attempts to address it by allowing anyone who has been adversely affected as a result of the gender change to commence a court application for relief.
While I know of no similar legislation being contemplated in Ontario, given that Parliament has recently broadened its definition of a spouse, I expect it will not be long before gender change will be similarly acknowledged. Once that time comes, more care will likely be needed in drafting testamentary documents. Sensible solutions proposed by Ms. Summers are to avoid referring to beneficiaries by class and instead referring to them by name, and/or to insert a clause setting out the meaning of references to gender.
Natalia Angelini
