Wills: Unmarried & Uncertain!

I consider my role in helping families through the minefield of legalities when putting in place a valid Will a privileged one. No one-day is the same; they do say that variety is the spice of life! I act for families up and down the country (Leeds to London and beyond) and have the pleasure of visiting some of them in their homes where needed. This really enables me to get to know people better, understand their family dynamic and their objectives for the future.

The truth is that when you have been working in estate planning for over ten years, there isn’t much that you see or hear that truly shocks you! This area of law is a very emotive one and tact is one of the key skills I use most days.

This article provides an insight into Wills and the position for unmarried couples as well as leaving gifts to someone who has legally changed gender.

Unmarried Partners – Civil Partnerships for Heterosexual couples?

It will be interesting to see in the coming months which way the Supreme Court rules on whether heterosexual couples can enter into a Civil Partnership, in the same way that same-sex couples can.

In February 2017, unmarried couple, Miss Steinfeld and Mr Keidan, lost their appeal at the second highest court in the land for Civil Partnerships to apply to equally to hetero and same sex couples. The pair claim that many couples still feel marriage has connotations of religion and patriarchy and is simply ‘not for them’. They would prefer the choice that same-sex couples now have of either marrying or entering in to a Civil Partnership. If successful, the change would also mean that heterosexual couples obtain the legal protection that a Civil Partnership brings in relation to inheritance tax, pensions and next-of-kin arrangements.

The case highlights two points; firstly is it discriminatory towards heterosexual couples not to apply the same Civil Partnership arrangement, and should the government look at Civil Partnerships again, as this potentially go against heterosexual couples’ Human Rights?

At present, unmarried partners who have not made a Will (die intestate) do not have an automatic entitlement to their partner’s estate. The tax position when passing assets to each other is also unfavourable compared to married/Civil Partnered couple. The term ‘common law’ partner/spouse is used in various contexts but this phrase has no legal meaning. I will be keeping a close eye on the decision which will probably be heard by the Supreme Court later this year to see if equality will prevail…

Unsure as to Gender Identity in a Will…

It is common to leave gifts to ‘my son Jake’ and ‘my niece Jasmin’ in a Will so that they are clearly identified for the Executors of the Will to follow when the time comes.

But what if a beneficiary legally changes their gender in your lifetime? Altering your Will may not be the first thing on your mind, however, it is imperative to consider what implications a new gender identity has when inheriting under a Will.

If a beneficiary has legally changed their gender by applying for a Gender Recognition Certificate under the Gender Recognition Act 2004 (‘GRA’) then the passing of assets under Wills made before April 2005 (the date the Act came into force) will not be affected.

Wills made after April 2005 will need to be carefully reviewed to ensure a person’s new identity is accurately described in the Will to prevent headaches for the beneficiary and the executors in charge of making payments out.

Commentators have debated whether it is necessary, for the sake of clarity, to refer to the beneficiary in their former gender and their newly acquired one so that doubt cannot be cast on the testator’s intentions.

From my perspective and experience dealing with families who have been through gender reassignment, I would say that referring back to someone that ‘no longer exists’ only creates angst and potential embarrassment for the beneficiary. Wills that are admitted to probate are public documents and so could be viewed by anyone who requested a copy at a later date. This includes Codicils that have been used to make an amendment to a previous Will.

The sensible course of action, in my opinion, is to have a professionally drawn Will re-written to include the name of the beneficiary in their acquired gender. You can then have a private side letter drawn up to clarify anything to your Executors, if need be. Taking this action now could potentially save a beneficiary having to ‘apply’ for their inheritance under the GRA if there was uncertainty in the Will.

If you want to understand further the uncertainties faced by unmarried couples or put to rest any unease about leaving gifts to persons with a new gender then contact Zoe Perry, Associate Solicitor at Thursfields, specialising in Trust, Estates and Wills on 01562 512406 or email zperry@thursfields.co.uk

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