Solicitor’s Tip – September 2025
Gender diversity, the concept that gender identity is “more diverse than ‘he and she’ or a binary view of masculine and feminine,”[1] is beginning to impact the practice of law in Canada. For example, a number of Canadian courts have introduced respectful forms of address directives,[2] and the Canadian Bar Association has a free training module on gender diversity for its members.[3] The growing dialogue on this subject is timely, given the number of Canadians who identify as gender diverse – the 2021 Census data indicates that over 100,000 individuals in Canada identify as transgender or non-binary, representing 0.33% of the population aged 15 or older.[4] Considering our increasing awareness of gender diversity, it is important that wills and estates practitioners take steps to ensure their practices are gender-inclusive, including the way in which they prepare wills for clients.
This Solicitor’s Tip is the first in a two-part series examining practices lawyers can adopt to ensure the wills they draft are inclusive of individuals whose identities fall outside the traditional male/female binary. This installment goes into some detail regarding the concept of gender diversity and addresses the use of gender-neutral language and the inclusion of honorifics in wills.
Understanding Gender Diversity
In order to undertake gender-inclusive legal drafting, it is important to understand the concept of gender diversity, including some of the key terms. Non-binary is an umbrella term for individuals who do not identify strictly as male or female, thus falling outside the traditional gender binary. Non-binary includes individuals who identify as having an intermediary gender, as being multiple genders, as having a constantly shifting gender, or as not having a gender.[5] Transgender, another umbrella term, refers to individuals whose gender identity differs from the sex assigned to them at birth.[6] While some non-binary individuals identify as transgender, not all transgender individuals are non-binary.
Will Drafting Using Gender-Neutral Language
In light of gender diversity, it may no longer be appropriate to draft legal documents, including wills, as though gender is a binary construct. One way to make a will more gender-inclusive is by using gender-neutral language instead of gendered terminology. For example, there is a range of gender-neutral family relationship descriptors that may be used when drafting wills, including the terms spouse, partner, child, sibling, nibling,[7] pibling,[8] and even family member.[9] Gendered terminology can also be avoided by referring to individuals by name throughout the will. As demonstrated by the following example, gender-neutral will drafting may only require minimal changes to a client’s testamentary document:
| Original will clause | Gender-inclusive revisions |
| If my son, HOWARD VANSICKLE, shall be living at the time of my death, my Trustees shall sell the farming business carried on by me … to my son, HOWARD VANSICKLE, as soon as convenient for … [a] price to be agreed upon by my Trustees and my son, having regard to the assessed value of the lands included hereby at the time of my death and the assistance given me by my son in the conduct of the farming business …[10] | If my child, HOWARD VANSICKLE, shall be living at the time of my death, my Trustees shall sell the farming business carried on by me … to my child, HOWARD VANSICKLE, as soon as convenient for … [a] price to be agreed upon by my Trustees and my child, HOWARD VANSICKLE, having regard to the assessed value of the lands included hereby at the time of my death and the assistance given me by HOWARD VANSICKLE in the conduct of the farming business … |
Using gender-neutral language when drafting a will is advisable because counsel and clients will seldom know for certain the gender identity of everyone named in the client’s will, recognizing that individuals may be gender diverse and also may not share their gender identity with the client. To avoid the risk of misgendering, which may cause distress,[11] gender-neutral language can be adopted.
Practically speaking, there is also a risk that gendered language may increase the cost of estate administration. For instance, if a will includes a class gift, it may be necessary to apply to the court for direction if the class is described using gendered language, such as “my sons,” and a person who fell into the class when the will was executed stops identifying as a male (or solely as a male). If the individual identifies as agender, genderfluid, genderqueer, or bigender when the will is being administered, or has even physically changed their gender, it may be unclear whether they ought to share in the class gift. If gender-neutral language is used, such court applications may be prevented.[12]
Refraining From Using Honorifics
Honorifics such as Mr., Mrs., or Miss are not often used when drafting wills. Their use is also not recommended since such terms inherently signal assumptions about a person’s gender identity. Not only is this contrary to gender-inclusive drafting, but there is also a risk that the honorific used may be inconsistent with the individual’s chosen gender identity, resulting in misgendering. For this reason, it is advisable to omit honorifics from wills altogether unless a client specifically requests their use.
If a client does want to use honorifics in their will, it is appropriate to ask the client to personally confirm the preferred honorific of each individual included in the will. This measure ensures accuracy and is also respectful of individual preferences. If the client is unable to confirm everyone’s preferred honorific, counsel could use Mx (pronounced “mix”), a gender-neutral honorific that does not indicate whether a person is male or female.[13] Mx is now recognized as a respectful alternative honorific for non-binary individuals.
Conclusion
Given the current dialogue in Canada around gender identity, wills and estates practitioners should ensure that testamentary instruments prepared for clients are drafted in a gender-inclusive manner. If counsel understand gender diversity, use gender-neutral language, and refrain from the use of honorifics, it is possible to create wills and testamentary documents that honour the identities of all individuals involved in a client’s estate.
[1] British Columbia Law Institute, “Gender Diversity in Legal Writing: Pronouns, Honorifics, and Gender-Inclusive Techniques” (June 2022) at 7, online: <https://www.bcli.org/wp-content/uploads/Gender-Diversity-in-Legal-Writing-1.pdf> [BCLI].
[2] See Samuel Singer and Amy Salyzyn, “Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives” (2023) 101 Cdn Bar Rev 319 at 324-327, 2023 CanLIIDocs 2333 [Singer & Salyzyn].
[3] CBA, “New training module on gender diversity and inclusion for legal professionals launches on Trans Visibility Day” (31 March 2025), online: <https://cba.org/news/new-training-module-on-gender-diversity-and-inclusion-for-legal-professionals-launches-on-trans-visi/>.
[4] 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>.
[5] See Margaret Lawson, “Transgender Glossary of Terms”, 2017 CanLIIDocs 3851 [Lawson]; BCLI, supra note 1at 11 (non-binary individuals may identify as agender, genderfluid, genderqueer, or bigender).
[6] BCLI, ibid at 12; Lawson, ibid. Both resources also define “trans man” and “trans woman”.
[7] The word “niblingis a gender-neutral term used to refer to a child of one’s sibling as a replacement for ‘niece’ or ‘nephew.’” See Merriam-Webster, “Words We’re Watching: ‘Nibling’”, online: <https://www.merriam-webster.com/wordplay/words-were-watching-nibling>.
[8] The word pibling is a gender-neutral or nonbinary term that can be used “to refer to the sibling of a parent regardless of their gender identity,” replacing the terms aunt and uncle. 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/>.
[9] See BCLI, supra note 1 at 20.
[10] This clause was taken from VanSickle Estate v. VanSickle, 2022 ONCA 643; see para 6.
[11] Misgendering can be psychologically distressing and have serious implications for the physical, financial, and social well-being of gender diverse individuals: see Singer & Salyzyn, supra note 2 at 322, 337.
[12] For example, in The Bank of Nova Scotia Trust Company v. Burnett, 2023 ONSC 3639, the language used in the testator’s will gave rise to a restrictive construction of class membership, albeit on grounds unrelated to gender.
[13] See also BCLI, supra note 1 at 13. See also Singer & Salyzyn, supra note 2 at 335.