Background
The Supreme Court today (16 April 2025) published its judgement on the definition of “woman” for Equality Act 2020 purposes in the For Women Scotland Limited case. You can read the full judgement here. In short, the court linked the term woman to a person’s biological sex.
How does succession law approach the issue? Let’s say I leave my entire estate to “my eldest son”. What happens if my son is a daughter by the time I pass away? Will they still inherit my estate?
The Gender Recognition Act 2004
You can find the answer in the Gender Recognition Act 2004. For Wills executed after 4 April 2005, a gender recognition certificate will alter the gender of a beneficiary. If my son has become a daughter, she would not be entitled to the legacy. However, s.18 gives discretion to the High Court to grant an order adjusting property rights for those who would be adversely affected by this rule.
By contrast, for earlier Wills a beneficiary’s gender is determined by their birth certificate. In my example my daughter would be able to inherit regardless of her gender recognition certificate as she will still be treated as my son for the purposes of the Will. However, if you have a pre-2005 Will it is long overdue for review!
Exceptions and overseas beneficiaries
There are some exceptions that you should be aware of. First, if the Will includes a legacy to “my son David”, the use of the word son here is a descriptor only. As long as it is possible to identify who David is, future changes in their gender will have no impact.
The more interesting question is how overseas gender recognition impacts Wills. The law does not recognise foreign gender changes as being effective for English law (s.21 GRA 2004). Therefore, if my daughter changed her gender from male to female overseas, a legacy in an English Will to “my daughter” could potentially fail as for English purposes she would still be my son. Of course, the better approach is always to name a beneficiary where possible, which would avoid this issue entirely.
