Note: This article refers to the “Indian Act,” passed by the federal government in 1876 and still in effect today. The terms now in use have changed or are continuing to change. From Kory Wilson’s Pulling Together: Foundations Guide, “Indian is now considered offensive and has been replaced by First Nations. And we are hearing the term Indigenous more and more in Canada. It is being used synonymously with Aboriginal, and in many cases it is the preferred term as the collective noun for First Nations, Métis, and Inuit…Wherever possible, though, you should use the specific names of the Nations and communities, especially if you are acknowledging territory and identity.”
When a resident of BC dies without a will, administration of their estate typically falls under the Wills, Estates and Succession Act (WESA). However, if the person was ordinarily resident on reserve or crown land at the time of their death, their estate is subject to the laws of the Indian Act.
It means the deceased normally resided on an reserve. However, they didn’t necessarily need to be living on a reserve at the time of their time.
If there’s uncertainty about an individual’s resident status, Indigenous Services Canada (ISC) can make this determination with a death certificate. ISC is also responsible for probating the person’s will with approval from the Canadian Minister of Indigenous Services.
ISC can usually reach a determination without going to court. However, if the situation is complicated, witnesses may have to testify, and the minister will review the file. Some cases may reach the BC Supreme Court.
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