Scottish Sheriff Court Decisions

SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

2015SCGLA49

F354/15

N O T E

by

SHERIFF JOHN N. McCORMICK

re

W G, Executry

GLASGOW, 24 June 2015.

The facts

[1]        A trans woman submitted an application for confirmation to this Commissariot.  She did so via solicitors.  In the will, the testator had referred to her both by her previous name and by her consanguinity to the testator.  No other details are pertinent. 

The issue

[2]        The issue is whether the exhibition of a full gender recognition certificate under the Gender Recognition Act 2004 and a birth certificate are required in support of such an application for confirmation as suggested at paragraph 5-22 of Currie on Confirmation of Executors, ninth edition by Eilidh M Scobbie which reads:

“Where after the date of the deceased’s testamentary writing, an executor has formally changed sex by obtaining a gender recognition certificate, there will be no delay in the granting of confirmation if extract copies of the Birth Certificate and a Full Gender Recognition Certificate issued under the Gender Recognition Act 2004 are produced with the inventory, referred to in the declaration and docketed as relative thereto.”

Unsurprisingly, standing the paucity of such applications, there is no reference to judicial decision.  While, in terms of the 2004 Act, there is a distinction between a full and an interim gender recognition certificate (depending on whether the person applying for the certificate is married, section 4(3)), the distinction is of no significance to this opinion.  Where a full gender recognition certificate is issued the recipient is entitled to a new birth certificate (section 10 and schedule 3).  The tenor of the Act is otherwise to maintain privacy.

[3]        Initially the application for confirmation had been returned to the solicitors with a request for a full gender recognition certificate and birth certificate, in accordance with Currie.  The solicitors replied questioning whether the issue was relevant and referring to the declaration which had disclosed a change of name.  The matter was passed to me.  I reached the same conclusion.  I instructed that the application be processed.

[4]        In my opinion, where an application for confirmation is presented by a solicitor on behalf of a client, a full gender recognition certificate accompanied by a birth certificate, are not ordinarily required.  Certificates may be required where the executor-nominate or executrix-nominate is unrepresented.

Discussion

[5]        Where solicitors are instructed, an application for confirmation is lodged with the docketed will (or extract) accompanied by the appropriate fee. 

[6]        A change of name by an executor-nominate or executrix-nominate is disclosed in the declaration and “the normal commissary practice is to accept the declaration as conclusive…” (Currie, paragraph 5-21).  The reason for a change of name is neither sought nor disclosed.  Contrast paragraph 5-21 to paragraph 5.22 quoted above.

[7]        I have considered the terms of the Gender Recognition Act 2004.  The Act does refer to succession and to trusts but it does not explicitly require evidence of a change of gender accompanied by a birth certificate in support of an application for confirmation.  Currie makes reference to the 2004 Act but, beyond that, makes no reference to a provision supportive of the conclusion reached.  I see no reason to distinguish a change of gender from a change of name.  It is the same individual making the application.  Indeed it is conceivable that the court may not be aware of a change of gender.  The following scenarios are illustrative. 

[8]        Where there is a change of gender before the will is drafted, the court would be unaware of that prior change of gender. 

[9]        Where there has been a change of gender between the execution of the will and the death of the testator and the testator has referred to the executor-nominate or executrix-nominate solely by name (“I appoint John Smith as my executor…”); if the subsequent change of name is declared in the declaration, I see no reason to insist upon the production of a full gender recognition certificate and birth certificate.  This should be treated as any other application where an executor-nominate or executrix-nominate has changed his or her name.

[10]      Where an executor-nominate or executrix-nominate has an epicene name, (gender neutral: “I wish Alex/Sam/Pat Smith to deal with my affairs after my death…”) then, come the application for confirmation, a gender change may go unnoticed. 

[11]      Where the consanguinity between the testator and the proposed executor-nominate or executrix-nominate is disclosed in the will (“I appoint my son/brother/nephew, John Smith to be my executor…”), the change of name should be disclosed in the application submitted by solicitors in the usual manner.  Beyond that a gender recognition certificate and birth certificate should not ordinarily be exhibited as the person seeking confirmation is declaring that he or she is the person entitled to be confirmed.

[12]      Where the testator fails to appoint an executor, or there is a subsequent failure of the appointment, a residuary legatee (Executors (Scotland) Act 1900, section 3) may apply for confirmation.  Here the residuary legatee should declare a change of name within the application submitted on his or her behalf, in the usual manner.  Again the exhibition of a full gender recognition certificate and a birth certificate would not ordinarily be required in my opinion. 

[13]      Where the testator ill-designs the intended executor or refers to the intended executor by gender, but not by name (“I appoint my son(s)/brother(s) to be my executor(s)….”) the position may be less clear.  Here it may be necessary to disclose a change of gender and a change of name within the declaration when making the application for confirmation.  Much would depend on, for example, the date of the will, the date of the change of gender and whether the person seeking appointment had siblings of a different gender (ie. whether, in this example, the testator had specified that his or her son(s) should be appointed executor(s) in preference to his or her daughter(s)).  I think I have said enough about the various permutations.

[14]      Where there is irregularity in the appointment of an executor-nominate, special warrant to issue confirmation may be applied for to the sheriff (Currie, paras 5-04 and 19-28).  

[15]      Whatever else, the court should be consistent.  Consider a solicitor acting on behalf of an executrix-nominate.  If she had changed her name on marriage or on divorce, the change is declared in the application for confirmation.  Neither the birth nor marriage certificates nor the extract decree of divorce are exhibited.  By parallel approach, I see no reason why that executrix-nominate must produce a full (or interim) gender recognition certificate and a birth certificate to evidence a change of her gender.

[16]      For these reasons I do not agree with the blanket approach to the production of a full gender recognition certificate and birth certificate as is suggested by Currie at paragraph 5-22.

An exception – where solicitors are not instructed

[17]      Solicitors are officers of the court.  A practising certificate confers protections for executors and beneficiaries. 

[18]      The same cannot be said where an executor-nominate applies for confirmation personally.  Commissary practice is to check that the person presenting an application for confirmation as executor-nominate or executrix-nominate is who he or she claims to be and is entitled to be confirmed.  Here it is possible that a full (or interim) gender recognition certificate and a birth certificate may be required as part of that process.  This is not discriminatory but reflects routine and prudent inquiry to check, for example, that a change of name is not for a fraudulent purpose.

Conclusion

[19]      In my opinion the production of a full gender recognition certificate accompanied by a birth certificate should not ordinarily be required to support an application for confirmation presented by solicitors on behalf of an executor-nominate or an executrix-nominate.  Certificates may be required where the executor-nominate or executrix-nominate is unrepresented. 

[20]      While I conceive only limited circumstances where a full gender recognition certificate accompanied by a birth certificate will be required, that is not to say that others might yet arise.  To cater for the unforeseen, I have inserted the word “ordinarily” within my conclusion. 

[21]      Applications such as this, though few, will recur.  They can be anxious for those concerned, including court staff.  Hence consistency is desirable.  It may be suggested, though not within this application, that by insisting on the production of a full gender recognition certificate and a birth certificate upon a change of gender, while otherwise accepting at face value a change of name; that that distinction may be unwittingly discriminatory (Equality Act 2010, section 29(2)(a) and (c)).  These are the mischiefs which this note seeks to address. 

                                                                                    ……..……………………………..Sheriff