Indigenous Estates: Understanding Special Legal Processes

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 From Kory Wilson’s Pulling Together: Foundations Guide, “Indian is now considered offensive and has been replaced by First Nations.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.”

Under the Indian Act, the Minister of Indigenous Services (the “Minister”) holds jurisdiction and authority over the wills and estates of Indigenous persons who reside on First Nations land at the time of their death.

The Indian Act confers significant powers upon the Minister concerning the administration of wills and estates of Indigenous people. The legal validity of a will executed by an Indigenous individual depends upon the Minister’s approval. The Minister also holds the authority to appoint executors in cases where (1) a will exists or (2) the appointment of administrators in cases where an Indigenous person dies without having made a valid will, or without disposing of all their assets through a valid will. In addition, the Minister has the power to void a will, in whole or in part.  In such cases, no distribution of the deceased’s properties and assets can occur without the Minister’s approval.

Transfer of Jurisdiction over an Indigenous Estate  

The Minister has the discretion to allow a provincial superior court, such as the BC Supreme Court, to have jurisdiction over an estate. The executor, administrator, or beneficiaries can formally request transferring jurisdiction to the courts in various circumstances, including:

• Where the deceased possessed substantial assets off reserve.
• The estate is expected to face litigation.
• Specialized expertise is required for the administration of the estate.

Upon receipt of a formal request consenting to the transfer of jurisdiction, all potential beneficiaries will receive notification of the Minister’s intention to direct the transfer, along with an opportunity to submit written representations. After this is done, the Minister will assess whether the court is the suitable venue to address the issues that have been raised and can then issue an order directing the transfer of jurisdiction over the estate to the BC Supreme Court.

The transfer of jurisdiction from the Minister to the courts grants all involved parties access to court procedures, including the hearing of oral testimony, cross-examination of witnesses, and applications to produce relevant documents in the possession of the parties involved.

If you have any questions about an Indigenous estate or if you have successfully requested a transfer of an estate dispute from the Minister to the BC Supreme Court, please contact the Hammerco team for a free consultation.