I was recently asked about options for drafting a will where one of the intended beneficiaries identifies as transgendered or non-binary. Statistics Canada just reported that 2021 Census data shows that around one in every 300 Canadians identifies as transgender or non-binary, so this is a timely question.
If a beneficiary has made a formal change (e.g. updated identity documents) from the gender and/or name they were assigned at birth, we simply draft your will using the name that your beneficiary uses now, and additional identifiers such as date of birth or relationship (e.g. “my child”) as appropriate.
Complications are more likely to arise if you made your will before one of your beneficiaries let you know about this change, or your beneficiary has not yet made changes to their official documents. They remain the person you intended to benefit, so it is unlikely that this would prevent them from receiving your gift. While it is analogous to a beneficiary who changes their surname upon marriage, people are less accustomed to dealing with a gender identity-related name change and we want to make sure that your intended beneficiary receives your gift as easily as possible. You don’t have to make a new will, but it in some situations it might be a good idea.
The details matter, and that’s why it’s important to work with an Ontario licensed lawyer when you are making your will. We need to discuss things like whether your estate trustee knows your intended beneficiaries and therefore knows about the change, or whether the beneficiary who is open about their gender identity with you is open about it with others. Our goal is to give effect to your wishes, and an essential element of that is ensuring that all of your beneficiaries can be correctly identified.
If I drafted your existing will and you want to update names and/or pronouns to accurately reflect a beneficiary’s gender identity, I will make that change for you at no charge. If your will was prepared elsewhere but you would like my help with those changes, I offer a discounted rate for that service.