The implication of the Gender Recognition Act 2004 on Inheritance, 20 years on…

June 9, 2025

The Gender Recognition Act 2004, which came into effect 4 April 2005, was a monumental piece of legislation for transgender individuals.

The Act provides that those who obtain a Gender Recognition Certificate are granted legal recognition of their acquired gender, which shall allow for transgender individuals to change their biological sex on their legal documents, including birth and death certificates.

There are limitations to this, however, as recently demonstrated by the recent case of For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16, in which the Supreme Court has determined that for the purposes of the Equality Act 2010, references to “man” and “woman” refer to an individual’s biological sex, rather than their certificated sex. For more information regarding this, please see the following article: https://www.herrington-carmichael.com/supreme-court-judgment-explained-cutting-through-the-noise/

The Gender Recognition Act and Inheritance Law

Prior to the Gender Recognition Act 2004 and the subsequent issuing of Gender Recognition Certificates, those who were the inherited beneficiary of a Will but who later transitioned to their acquired gender would fail to benefit from such inheritance under the terms of the Will.

S24 Wills Act 1837 establishes that when determining the identity of a beneficiary, the Will will be interpreted as if it were executed immediately before the Testator’s death. Therefore, if when drafting a Will, the Testator had a daughter, but at the time of death her child had transitioned to male, the gift would likely fail.

The implementation of the Gender Recognition Act provided retrospective protections against this circumstance, as s15 Gender Recognition Act 2004 establishes that where a Will was drafted prior to 4 April 2005, and the beneficiary has since legally acquired a different gender, this will not invalidate the beneficial entitlement under the Will.

However, the explanatory notes to the Act highlight the issues to be aware of for Wills drafted after 4 April 2005. It is fundamental that those who are drafting Wills consider the implications of specific wording which may cause an intended gift to fail within a Will.

Case Study 1: The redirected legacy

Joan Weston has three children, Stuart (35), Elizabeth (30), and Lucy (25). In her Will dated 10 July 2015, which was professionally drafted by a Solicitor, Joan has left the following legacy:

I give £50,000 to my eldest daughter

When drafting her Will, Joan had intended that by drafting her Will in this manner, the £50,000 would be gifted to her daughter Elizabeth. However, in 2016, Stuart started his transition and in 2020, Stuart had obtained a Gender Recognition Certificate and was now known as Sarah.

Joan died in 2021, without having changed her Will.

Following application of the Gender Recognition Act 2004, Sarah is now Joan’s eldest daughter, and therefore she would now receive the £50,000 legacy from Joan’s Will.

In this case study, it is clear that Joan had intended to benefit her daughter Elizabeth when she drafted her Will. However, the use of non-specific wording when drafting the Will has caused the gift to be diverted from Elizabeth to Sarah, as Sarah is now the eldest daughter. 

Here, it would be possible for Sarah to enter into a Deed of Variation in recognition of the intended gift. If the Deed of Variation is entered into within two years of Joan’s death, the variation will be considered as having been written into the Will for tax purposes. Sarah’s entitlement to the gift will disappear and Elizabeth will benefit from the legacy.

However, it may not be possible to pursue this route, as there may be estranged members of the family or Sarah may not want to vary her entitlement. If this is the case, specialised legal advice in relation to contentious Estate administration will need to be sought.

As Elizabeth believes herself to be the intended beneficiary, it may also be possible for her to look at whether the drafting Solicitor has been negligent in their Will drafting. Again, further legal advice in respect of contentious Estate administration will need to be sought.

Case Study 2:

In her Will dated 29 May 2017, which was professionally drafted by a Solicitor, Greta Moore has gifted her Residuary Estate as follows:

10.1 as to 50% for my daughter Judith Moore absolutely; and

10.2 as to 50% for my granddaughters as shall survive me in equal shares absolutely.

At the time of drafting her Will, Greta had five granddaughters: Stephanie, Megan, Isabella, Helen, and Katie. By the time of her death, Isabella had transitioned, obtained a Gender Recognition Certificate and is now known as Isaac.

Following application of the Gender Recognition Act 2004, as Isaac is now legally recognised as male, he would not fall under the class of beneficiaries described as “my granddaughters”. Isaac would therefore not benefit under Greta’s Will.

However, Greta is still alive.

In this case study, Greta’s Will has been drafted using gender-specific wording when referring to a class of beneficiaries, which will cause the class gift to fail in part in that Isaac would not benefit.

Here, Greta drafting a new Will is imperative. By redrafting her Will to include the class of beneficiaries as “grandchildren”, would mean that Isaac would be included in the class and Greta would be accounting for any future gender changes of which she is not yet aware.

What you should do and how we can help:

Even if you believe that your current family circumstances are not impacted by the Gender Recognition Act and its implications on Inheritance, you cannot assume that it will never be.

The inclusion of gender specific language will continue to be an issue for inheritance unless carefully drafted in consideration of all future potential situations.

We advise that every individual updates their Will at least every five years or at every new life event, including changes to your family circumstances or significant financial changes they may incur.

If it has been some time since you last made or reviewed your Will, if your Will features gender-specific language, or if you believe that your family circumstances will be affected by the contents of this article, please contact us.

We offer specialised advice and will ensure that your Will is drafted to accurately reflect your wishes in consideration of potential future changes of circumstance, to ensure that your Estate is preserved and protected, how you wish it to be, for the ones you love.  

Jessica McDonald
Solicitor, Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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