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Accommodating Beneficiaries of a Will With Differing Gender Identities

Accommodating Beneficiaries With Differing Gender Identities

Our society is becoming increasingly attuned to accommodating the needs of people who have various gender identities, whether such people are transgender, queer, or do not identify as one specific gender. For example, Ontario announced a few years ago that its residents can use an “X” under the “Sex” indicator on provincial government identification to signify that they identify as transgender, non-binary, and/or two-spirited, among other gender identities. The “X” is also a support for people who simply do not want to disclose their gender identity on their government identification. It seems that more and more people are understanding gender to be a spectrum rather than a binary.

Some of us may have a friend or loved one who has a gender identity that differs from their biological sex at birth, or may ourselves have such a gender identity. This could be most prevalent in younger people, as youths seem not only more likely to be familiar with the idea of gender as a spectrum, but are also more likely to have friends and loved ones of various gender identities (particularly as our society continues to progress in its acknowledgement of this idea). As gender identity is a deeply personal aspect of one’s overall identity, many would agree that it is important to be respectful of all of our friends and loved one’s gender identities, including by using their preferred pronouns when referring to them.

That being said, this begs the question: how can one be respectful their friends’ and loved ones’ gender identities when naming them as a beneficiary of their will? A will, after all, is a fixed document that may not be effective until many years after it has been executed. Much can change within such a timeframe. Indeed, one may find this especially challenging if they have friends or loved ones who have changed their gender identity multiple times.

First, for those concerned, it is important to note that the Ontario Court of Justice held in National Trust v. Northside United Church that “misdescription” will not defeat a testator’s intent.[1] Thus, as long as a will sufficiently identifies a beneficiary, it will be difficult to argue that such beneficiary would not be entitled to their gift under such will in the event that the name or gender that such will uses to refer to them is inconsistent with their name or gender on the date of death of the testator.

That being said, it would be prudent for the testator, particularly with respect to their family members, to identify their relationship with each beneficiary under their will (i.e. their child, sibling, cousin). While the phrases “relative” or “family member” may be a bit too general, the testator should avoid using gendered terms like “brother”, “son” or “granddaughter”. Instead, it would be ideal to use more general, gender -neutral terms (“sibling”, “child” or “grandchild”). For terms like “niece” or “nephew”, you may consider using a phrase such as “the child of my sibling”.

Pronouns are also critical in this respect. It may be preferable to use blanket pronoun terms to refer to all beneficiaries in a will. “They” is generally an inclusive term for people who do not identify as one specific gender. However, an issue with the pronoun “they” is that it may be at times unclear if the pronoun is singular or plural, which could potentially cause will interpretation issues. A solution to this is to use the phrases “he, she or they”, “his, her or their” or “him, her or them” in every instance where the will is referring to a singular beneficiary. There should be an accompanying administrative provision in the will that indicates that the words “they”, “their” or “them” in such phrases should be construed in the singular, and not the plural. Such a clause could also leave it to the trustees of the will’s absolute discretion as to how to interpret whether any use of the word “they”, or a related pronoun, is singular or plural.

A final consideration is that some people may change their name after discovering (or rediscovering) their gender identity. A best practice would be to list all of a beneficiary’s names when referring to them, ideally via a phrase such as “my sibling, HILDA VALENTINE GONERIL (also known as “CLAUDE VON RIEGAN”)”. This is particularly so if the testator knows the name that the beneficiary uses on their government identification, and should subsequently include that name in the reference to that beneficiary. Should there be any dispute as to entitlements under the will, the additional detail can help resolve any ambiguity. Of course, it would also be prudent to, if practicable, check with any beneficiary who is particularly sensitive about their gender identity to get their thoughts on the matter.

Of course, it will be difficult to accommodate every single possibility when it comes to gender identity. However, using the strategies here can show an extra level of respect to any beneficiary whose gender identity it important to them.

[1] National Trust v Northside United Church (1994), 1994 CarswellOnt 667, 5 ETR (2d) 193 at para 7 [National Trust].

 

About Demetre Vasilounis
Demetre Vasilounis is an associate in the Trusts, Wills, Estates and Charities group at Fasken. He has a broad estates and trusts practice with an emphasis on the evolving relationship between estates law and technology. Demetre has developed and implemented cohesive estate plans for clients involving a wide range of different family and corporate structures. He has also advised on probate planning, disability planning, charitable gifting, asset protection strategies, cross-border estates and tax issues, personal privacy, and family law matters. Demetre enjoys learning and writing about unique, unexplored issues in estates law, particularly with respect to digital assets, privacy, artificial intelligence and intellectual property.

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