The law has considered the experiences of transgender individuals more and more in recent years. In Ontario, gender identity and expression became prohibited grounds of discrimination in 2012 (Toby's Act) and in 2017, there was a shift towards more gender-neutral language (All Families Are Equal Act). Despite these important recognitions, estate and succession laws have yet to consider the unique experience of transgender people, specifically when testamentary documents misname or misgender transgender individuals. This article will explore these problems and address how they should be resolved when they arise. This article uses the term transgender to refer to anyone whose gender differs from the gender they were assigned at birth, including non-binary people.
Deadnaming and Misnaming in Testamentary Documents
One concern that arises for transgender people is when an individual’s current name is not the name that appears in the will. For instance, a testator may include a gift to be given to their friend, Z. Z is transgender, and while everyone refers to them as Z, it is not their legal name. This may result in uncertainty as to whom the testator intended the gift to be given to, and the executor of the estate may need to apply to the court to confirm the intended beneficiary.
This may also occur if the testator is unaware that the name they know is not the beneficiary’s legal name. Furthermore, it is possible the testator did this intentionally to avoid deadnaming the beneficiary. As emphasized by Elek Lane in the article The Impact of Deadnaming, deadnaming is the hurtful act of referring to a transgender person by their birth name, instead of the name they go by presently. In her October 2025 Solicitor’s Tip, Suzana Popovic-Montag recommended that testamentary documents mention both a transgender beneficiary’s legal name and chosen name to ensure the estate trustee can identify the beneficiary with certainty. In the example above, the testator could have written ‘to my friend Z (also known as Y)’ to avoid ambiguity. If this has not been done, there is concern as to how the courts will interpret a provision that misnames a transgender beneficiary, as there is currently no case law on this specific concern originating from Ontario.
Despite this, case law from outside of Ontario has been effective in resolving issues where there is a misdescription of an individual’s name. In the United Kingdom, the case Re Ofner (1909 1 Ch. 60) considers how a testator included a bequest in his will to his grandnephew, Robert Ofner. However, the testator did not have a grandnephew with that name, but he did have one named Richard Ofner. The Court considered evidence that demonstrated how the testator often referred to Richard as Robert. The Court held, notwithstanding the incorrect name in the will, that Richard was to inherit the gift as it was clear that the testator intended for him to be the recipient.
Furthermore, in a case arising from British Columbia, Jamt Estate (Re), the testator instructed his lawyer to leave his entire estate to his nephew, Per Kare Jamt. However, the nephew’s name was actually Per Martin Jamt. The testator had accidentally confused the name of his nephew with the name of his brother. The Supreme Court of British Columbia concluded that the testator’s intentions were to leave his estate to Per Martin Jamt, and because the will failed to carry out his intention, the Court granted the rectification and declared Per Martin Jamt as the beneficiary.
While the law governing succession law in British Columbia grants the court broader remedial power from an accidental error than Ontario law, leaders in the estate law field note that this solution is still possible in Ontario. As noted by Justice Donnelly of the Ontario Court of Justice in National Trust v Northside United Church (1994 CarswellOnt 667) at paragraph 7, “Misdescription, so commonplace in his will, will not defeat that intent. The Court’s responsibility is to give effect to the intention of the testator.” This can be seen in Lipson v Lipson at paragraphs 32 and 42 where Justice Pattillo held that Ontario has the authority to delete or add words to a will, so long as the court is satisfied that: (a) it is apparent on the face of the will that there has been a mistake; (b) upon reading the will as a whole, the mistake does not support the testator’s intentions; (c) from reading the will, the testator’s intentions are so strongly expressed that, despite the mistake, no other conclusion could reasonably be drawn; and (d) the deletion or addition of words by the court give effect to the testator’s true intentions. While this case did not focus on a mistake in the beneficiary’s name, it could be persuasive to suggest the testator mistakenly omitted a transgender beneficiary’s legal name.
Based on the foregoing, as long as the name in the will is sufficiently clear as to whom it is referring, it is unlikely that a court would decide that any subsequent name changes would preclude that individual from inheriting under the will. However, this has not yet been established in case law, so the impact on the transgender community is uncertain.
Misgendering Transgender Individuals
Similar to misnaming, a beneficiary may be misgendered in a will. In the article Misgendering and the health and wellbeing of nonbinary people in Canada, Kai Jacobsen et al. explained that misgendering occurs when someone uses the incorrect pronouns or gendered term to refer to another person. This may occur within class gifts, perhaps if a testator created a class gift using gendered terms. The wording of a class gift allows for new members to join or previous members to leave the group after the date the testator executed their will. Thus, the number of members of a class gift is uncertain. The date the class closes is typically the date of the testator’s death. A problem arises if a beneficiary who belonged to the gendered class at the date of execution subsequently comes out as transgender before the testator’s death. For example, a testator may make a specific bequest to be given to all their grandsons. At the date of execution, the testator had a grandson, Q. However, at some point before the testator’s death, Q may come out as a transgender woman or as non-binary, thus no longer meeting the definition of ‘grandson’. The testator may have drafted the will this way to ensure that any future grandsons they had were accounted for in the will, not considering the possibility of one of the grandsons coming out as transgender, but the question arises as to whether Q should still form part of the class.
This may also occur if the testator mentions a beneficiary by their relation, but not by name, such as a reference to their eldest daughter. A question arises as to whom the provision should apply to if the testator’s eldest daughter at the time of execution comes out as a transgender man or as non-binary, or if another child of the testator comes out as a transgender woman and subsequently becomes the eldest daughter. This situation has been considered in the United Kingdom’s Gender Recognition Act 2004, which clarifies that if the will refers to the ‘eldest daughter’, and the testator’s child who was assigned male at birth becomes the eldest daughter after they come out, the provision will now apply to this individual, instead of the eldest daughter at the date the will was executed.
This solution is not ideal, as it does not consider the true intentions of the testator, and its practical implications mean that anyone who wishes to come out as transgender would essentially be forfeiting any gift that referred to them as their birth gender. Additionally, the impact of this provision means that non-binary individuals would almost always be excluded, as any gendered language in a will would no longer apply to them at all.
To avoid this unfavorable outcome, Ontario law should be amended so that it is clear the misgendering of a transgender individual will not prevent that person from inheriting a gift that referred to them by their previous gender, unless a contrary intention is shown in the will. A provision as such would support the common law principle that the primary purpose of will interpretation is to ascertain the true intention of the testator.
Conclusion
As it currently stands, ambiguities arise when a testamentary document misnames or misgenders a transgender beneficiary, as there is no case law or legislation in Ontario to suggest how a court should interpret such issues. When these uncertainties arise, the courts should ensure that transgender people are not forfeiting a potential inheritance when they begin their transition by both relying on case law from other jurisdictions and seeking to ascertain the true intentions of the testator.
About the Author
Liz Kieffer (they/them) is an incoming 3L student at Osgoode Hall Law School. They are the co-president of the Osgoode Estate Law Association and a member of the Osgoode OUTLaws. Currently, Liz is working as a summer law student at Lerners LLP. In their free time, Liz enjoys horseback riding and cheering for the Toronto Blue Jays.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.