Whereas past generations may have thought of gender as a binary concept — male and female — in recent years, gender identity has become much more complex. According to the 2021 Census, more than 100,000 people in Canada identify as transgender or non-binary, representing approximately 0.33% of the population aged 15 or older.[1]
As our understanding of gender evolves, it is important for lawyers to be respectful of gender diversity and avoid making assumptions about gender. For wills and estates practitioners, one way to achieve this objective is through gender-inclusive will drafting. Not only does such drafting show courtesy to those who survive the client, but gender-inclusive will drafting may also help minimize the need to apply to the court for directions.
This article discusses three strategies for preparing gender-inclusive wills: the use of gender-neutral language, reducing the use of pronouns, and how to identify beneficiaries whose legal names may not align with their gender identity.
Understanding Gender Diversity in a Drafting Context
To engage in gender-inclusive will drafting, it may be helpful to have a more comprehensive understanding of gender diversity. Not all individuals identify strictly as male or female — non-binary individuals, for example, may identify as having an intermediary gender, multiple genders, a fluid gender, or no gender at all.[2] In short, people may experience, identify, and express their gender in a wide range of ways.
A person’s gender identity may also differ from the sex assigned to them at birth; such individuals are referred to as transgender.[3] While some non-binary individuals identify as transgender, not all transgender individuals are non-binary.
Recognizing that counsel and clients will rarely know the gender identity of every individual named in a will, will-drafting that assumes a binary model of gender is outdated and ought to be avoided.
Using Gender-Neutral Language in Wills
One way to make a legal document like a will gender-inclusive is to draft it using gender-neutral language. For example, gendered family descriptors such as “son,” “daughter,” “brother,” “sister,” “wife,” or “husband” can simply be replaced with neutral alternatives, such as child, sibling, spouse, partner, or family member.[4] Other, less frequently used gender-neutral terminology may also be appropriate, such as niblings, which refers to both nieces and nephews,[5] and piblings, which refers to aunts and uncles.[6] In many cases, it may be possible to simply refer to an individual by name throughout the will, thereby avoiding the need for relational descriptors altogether.
If a will makes assumptions about an individual’s identity that does not reflect their lived reality — for example, by using gendered language — there is a risk that the will may cause a beneficiary or other person referenced in the will to experience psychological distress through misgendering. Misgendering occurs when a person is referred to using language that does not align with their gender identity, and has been described as “a critical stressor that is experienced as humiliating, stigmatizing, psychologically distressing, and dehumanizing.”[7] If a will uses gendered language, misgendering may occur inadvertently, recognizing that a beneficiary’s gender identity may be unknown to the client, or could shift after the will has been executed.
If a beneficiary’s gender identity subsequently shifts, and the will employs gendered language, it may also be necessary to apply to the court for directions regarding how to interpret the will. Take, for example, a class gift where the beneficiaries are identified as “my sons.” If one of the testator’s children identified as male when the will was drafted, but has since changed their gender identity, there may be uncertainty as to whether that child still falls in the beneficiary class and is entitled to share in the class gift.[8] While the estate trustee may feel it necessary to apply to the court for directions as to how to interpret the will, such an application would be unnecessary if the class gift had simply been drafted using gender-neutral terminology, such as “my children.” In short, interpretation issues may be avoided if a will uses gender-neutral language.
Pronoun Use in Wills
Pronouns are also salient to gender-inclusive will drafting. If binary, gender-specific pronouns, such as he/him or she/her are used, misgendering may occur, recognizing that for individuals, especially trans, non-binary, or other non-cisgender people, “pronouns are a fundamental part of a person’s identity.”[9] There are two potential alternatives to gender-specific pronouns.
The first alternative is to avoid using pronouns altogether when drafting a will, and instead referring to individuals consistently by name. The second alternative is to use they/them as a non-specific singular pronoun.[10] If counsel adopts the latter drafting practice, it may also be prudent to include a brief note in the will to indicate that the pronoun is intended to be singular rather than plural. Such a note may assist the court if interpretive issues arise during an estate administration, recognizing that pronouns can be relevant to will interpretation.[11]
A third, potential solution is using constructed gender-neutral pronouns such as ze/hir or ey/em.[12] However, because these pronouns are not widely used, the first two solutions may be more appropriate. There is a risk that constructed gender-neutral pronouns could give rise to uncertainty and increase the cost of an estate administration if a party with an interest in the estate were to ask the court to interpret this language.
Identifying Beneficiaries Through Deadnaming
When drafting a will, special care should also be taken when a beneficiary has changed their name to align with their gender identity, or is in the process of changing their name. While referring to a person by their former name — often described as deadnaming — is widely regarded as offensive and harmful,[13] a modified version of this practice may be appropriate when drafting a will in light of unique legal considerations.
If a beneficiary has not yet legally changed their name, it is generally advisable to identify them in the will using both their legal name and their chosen name, so the estate trustee can identify the intended beneficiary with certainty.[14]
Identifying a beneficiary solely using their deadname is inappropriate, even if it is still their legal name, since this practice may offend the beneficiary. That said, identifying a beneficiary with only their chosen name also is not advisable if their chosen name is not included on any legal documents. Such a drafting practice may make it difficult for the estate trustee to identify the beneficiary with certainty, in which case it may be necessary to apply to the court for directions as to who is entitled to share in the estate.[15] It may even be appropriate to apply to the court to rectify the will so that it correctly states the beneficiary’s legal name, in addition to their chosen name.[16]
A balanced approach — referring to the beneficiary with both their chosen name and their legal name — ought to communicate respect of the beneficiary’s identity while fulfilling counsel’s obligation to clearly identify the beneficiaries of the will.
Conclusion
Gender-neutral and gender-inclusive will drafting ought to be a priority in light of the increasing prevalence of gender diversity. By using gender-neutral language, approaching pronouns thoughtfully, and identifying beneficiaries who have changed their name using both their prior and chosen names, practitioners ought to reduce the risk of testamentary instruments causing harm or distress, being misinterpreted, or litigated. Such intentional drafting practices benefit both clients and beneficiaries, while reflecting the evolving realities of the communities that lawyers now serve.
[1]Statistics Canada, “Filling gaps in gender diversity data in Canada” (27 Apr 2022), online: <https://www150.statcan.gc.ca/n1/daily-quotidien/220427/dq220427b-eng.htm>.
[2] See British Columbia Law Institute, “Gender Diversity in Legal Writing: Pronouns, Honorifics, and Gender-Inclusive Techniques” (June 2022) at 11, online: <https://www.bcli.org/wp-content/uploads/Gender-Diversity-in-Legal-Writing-1.pdf> [BCLI] (non-binary individuals may identify as agender, genderfluid, genderqueer, or bigender). See also Margaret Lawson, “Transgender Glossary of Terms”, 2017 CanLIIDocs 3851 [Lawson].
[3] BCLI, ibid at 12; Lawson, ibid. Both resources also define “trans man” and “trans woman”.
[4] BCLI, ibid at 20.
[5]See Merriam-Webster, “Words We’re Watching: ‘Nibling’”, online: <https://www.merriam-webster.com/wordplay/words-were-watching-nibling>.
[6] See Min Straussman, “Pibling & Niblings: Do You Know These Words for Aunts, Uncles, Nieces, & Nephews?” (26 July 2021), online: <https://www.dictionary.com/e/aunt-uncle-niece-nephew-words/>.
[7] Samuel Singer and Amy Salyzyn, “Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives” (2023) 101 Cdn Bar Rev 319 at 337, 2023 CanLIIDocs 2333, citing Chan Tov McNamarah, “Misgendering as Misconduct” (2020) 68 UCLA L Rev 40 at 61. Singer and Salyzyn’s article also notes that misgendering can have serious implications for the physical, financial, and social well-being of gender diverse individuals: see 322, 327.
[8] For example, the individual may instead identify as agender, genderfluid, genderqueer, or bigender, or may have physically changed their gender, or be in the process of physically changing their gender.
[9] Nelson v Goodberry Restaurant Group Ltd dba Buono Osteria and others, 2021 BCHRT 137 at para 82.
[10] It is now relatively common to use they/them in legal writing as a non-specific singular pronoun: see BCLI, supra note 2 at 8.
[11] See, for example, Reeves v Inglis, 2022 ONSC 209 at paras. 44-46 (in a will that appointed multiple estate trustees, the pronouns used were relevant to determining the testator’s intent with respect to replacing those trustees). See also Mohapel v Young, 2024 ONSC 1332.
[12] BCLI, supra note 2 at 16.
[13] See, for example, Hamilton v BC Medical Services Plan, 2024 BCHRT 309 (human rights complaint premised on deadnaming, in addition to transphobia, misgendering, and incorrect pronoun use). See also BCLI, ibid at 10 (“Using a deadname may cause a person distress, may endanger them by outing them as trans, and should not be done without their permission.”)
[14] BCLI, ibid.
[15] Failing to resolve any doubts as to a beneficiary’s entitlement before making a distribution may constitute a breach of fiduciary duty: see Boers v. Korpilahti Estate, 2001 CarswellOnt 51.
[16] For a case where a will was rectified to correctly set out the beneficiary’s name, see Jamt Estate, (Re), 2021 BCSC 788.
