Important Things to Know about Wills and Estates on Reserve

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 From Kory Wilson’s Pulling Together: Foundations Guide, “Indian is now considered offensive and has been replaced by First Nations.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

What does it mean to be ordinarily resident?

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.

Who decides if the Indian Act applies to someone’s estate?

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.

What are the steps to challenge or change a will under the Indian Act?

1. Seek legal advice.
2. Get a copy of the death certificate.
3. With help from your lawyer, write a letter to ISC outlining your evidence.

How is challenging a will different under the Indian Act?

• The class of persons eligible to apply for variation under the Indian Act is broader than the class of children and spouses of the decedent entitled to seek variation under WESA. The Indian Act includes persons for whom the testator had a responsibility to provide for.
• The only requirement for a valid will under the Act is that there is a “written instrument signed by an Indian in which he or she indicates his or her wishes or intentions with respect to the disposition of his or her property on death.”
• Unlike the court’s jurisdiction under WESA, the minister cannot create new provisions or reword a will. If the minister declares a will (or a gift in a will) void, the estate or the gift is treated as in cases of intestacy under the Indian Act.
• With the exception of a spouse (married or common law partner), under the Act only those who are related to the deceased by blood are considered as heirs. However, an individual may be considered an heir of the deceased if they were legally adopted or adopted according to the customs of the First Nations (custom adoption).
• Under WESA, a will maker cannot leave property on a reserve to a person who is not a member of the First Nation entitled under that band’s laws and customs to live on the reserve. Similarly, under the Indian Act, a decedent cannot leave a parcel of land situated on a reserve to an heir – as it will be declared void. Nor will non-band members be able to acquire the land.