Beyond Binary: Exploring Testamentary Freedom and the Evolving Landscape of Gender Recognition

In this article, Stephanie Hepburn, Partner, Emma Read, Solicitor and Trainees Chloe Imrie and Erin Connor examine testamentary freedom and gender considerations in Scotland, and in England and Wales.

21 June 2023

Making a Will is an incredibly important consideration for many reasons. Having a Will in place saves time, money and stress for your family and loved ones after your death and allows you to decide not only who will inherit from your estate, but, also who will manage the administration of your estate. If you die without putting a Will in place, intestacy rules will govern the distribution of your estate and who is responsible for dealing with your estate administration – this may not be who you would wish or expect. These rules can be confusing and complicated and can make an already difficult time for your loved ones, that bit harder.

Although a Will does not need to be prepared by a solicitor to be legally binding, there are several conditions that a Will must satisfy in Scotland to be valid. If these legal requirements are not met, then your estate may not be distributed in line with your intentions.

For example, in Scotland under the Requirements of Writing (Scotland) Act 1995, to be formally valid, a Will needs to be self-evidencing, or probative. In order to satisfy this requirement, it must be signed and witnessed in a specific way. The testator, being the granter of the Will, must also have sufficient mental capacity to make a Will and it must be suitably worded to show their testamentary intention. As such, we would recommend consulting a solicitor to ensure that your Will is valid.

Can my Will say whatever I want?

Subject to certain limitations, a testator can pass their estate to whomever they wish. In the past, it was common to see estates left in their entirety to male descendants. Thankfully, in modern times this has become less and less acceptable.

In the English case of Kaur -v- Estate of Karnail Singh & Others [2023] EWHC 304 (Fam), Mr Singh left his entire estate of almost £2 million between his two sons, excluding his wife and four daughters.

In England, the Inheritance (Provision for Family and Dependants) Act 1975 exists to allow certain classes of claimants (including spouses, civil partners and children) to make a claim for a “reasonable financial provision” from a person’s Estate after their death. It is for the court to decide if the Will has failed to make reasonable financial provision, and if it has, what the financial provision should be.

In this case, Mr Singh’s wife was the only claimant, and she succeeded in securing a provision for 50% of the value of her husband’s net estate, as well as her legal costs coming out of the estate. What was then left would be distributed equally between the two sons. In England, courts are more willing to curtail testamentary freedom in the interests of fairness to the deceased’s family and dependants.

What if this happened in Scotland?

In Scotland, you cannot completely disinherit your spouse/civil partner or your children. Regardless of the terms of the Will, if someone dies leaving only a spouse or civil partner, they are entitled to half of the deceased’s moveable estate (i.e. everything but heritable property (houses and land)). Should the deceased die with no spouse/civil partner but children, the children are entitled to half of the moveable estate split evenly between them. If there is a spouse/civil partner and children, the spouse/civil partner is entitled to one third of the moveable estate, and the children are entitled to one-third of the moveable estate split between them.

If Mr Singh had died domiciled in Scotland, there would likely have been no need for court action, as it is the Executors’ duty to inform spouses/civil partners and children of their legal rights entitlement and give them the option to claim or discharge them.  As Mr Singh’s estate included the matrimonial home, four let residential properties, a commercial property, and land and further properties in India, Mrs Singh would have received significantly less had her husband been domiciled in Scotland when he died.

The Importance of Precision

Another important consideration when drafting a Will is precision. If your Will is not sufficiently clear as to who is to inherit your estate, then it may not be distributed in line with your wishes. In the recent petition by Vindex Trustees Limited [2021] CSIH 46 (see previous commentary on this case here), an individual left a legacy in her Will to a charity called the “Nelson Mandela Educational Fund, South Africa”, however, this charity did not appear to exist. The Executor, therefore, petitioned the court for directions as to what to do with the funds that had been left to the charity. The court declined to give directions and stated that this should be resolved by “the exercise of the executor’s managerial discretion and good judgment”. Whilst ultimately the Executor was left to make the decision, this evidences the issues, and costs if you need to refer the matter to the courts, that can arise where a Will is not drafted with precision.

Sometimes, following the death of the testator, it is possible that circumstances will have changed since the drafting of the Will, resulting in a Will that is not completely accurate. For example, John Doe drafts his Will in 2005, leaving everything to his daughter Jane Doe. However, by the time John dies in 2023, Jane Doe is now married, and known as Jane Smith. In these circumstances, a Will drafted by a solicitor will likely include wording that ensures a name change like this would not cause uncertainty as to the identity of the intended beneficiary. This is often done by reference to the relationship between the testator and the beneficiary. In the above example, John’s Will would make reference to Jane as his daughter, and as such she could be easily identified by the Executors.

This is a fairly common scenario and usually presents no difficulties. However, as it becomes easier for transgender people to legally live as their new gender, it is important to consider how a gender transition may affect the terms of a gender-specific legacy.

Potential impact of a gender transition

The Gender Recognition Act 2004 provides that, for Wills made after 4 April 2005, the legatee will be recognised as their acquired gender, rather than their sex at their birth.

This may lead to problems where there has been unspecific drafting. For example, if there was a testator with two sons, Arthur and Brian, and two daughters, Claire and Debra, who provided in their Will: “my heritable properties are to be split equally between my sons and the rest of my assets split equally between my daughters”. Adam then transitions and becomes a woman, taking the name Alice. Even though it was intended that Alice receive a half share of the properties, as she would be recognised as her current gender, not what was on her birth certificate, she would not benefit from the provision. Instead, Brian would inherit all the properties, and Alice, Claire and Debra would then each receive only one third of the remaining estate.

Although currently subject to challenge raised by the UK government, the Gender Recognition Reform (Scotland) Bill received approval in the Scottish Parliament earlier this year. With its aim of removing barriers for transgender people to live as their acquired gender, it is imperative that the drafting of your Will is as accurate as possible to ensure legacies are able to be interpreted correctly and to avoid any disputes arising.

If, however, you feel that you have been denied your entitlement under a Will, or do not think an Executor is administering the estate properly, please contact Stephanie Hepburn, Partner in our contentious executries team to discuss what remedies might be available.

As an Executor, it is your legal responsibility to ensure an Estate is distributed correctly – according to both the law and the deceased’s wishes. If you do not, the beneficiaries may raise an action against you. As can be seen from the Vindex Trustees case, mentioned above, the Courts are reluctant to intervene to give direction. If you are in any doubt about your duties as Executor, please contact Emma Read, Senior Solicitor in our Private Wealth and Tax Team.



This article was co-authored by, Chloe Imrie, Trainee, Dispute Resolution and Litigation and Erin Connor, Trainee, Private Wealth and Tax.