The following article outlines circumstances in which the Indian Act takes effect and precedence over the Wills, Estates and Succession Act, and the ways in which the Indian Act addresses Wills in British Columbia.
The law governing Wills, intestacy (when a person dies without a Will), and the administration of estates in BC typically falls under The Wills, Estates and Succession Act, known by the acronym “WESA.” However, if a Will-maker was “ordinarily resident” on an Indian reserve or crown land at the time of their death, then their estate will be subject to the Indian Act.
“Ordinarily resident” means that the Will-maker normally resided on an Indian reserve. While this is sufficient for the Indian Act to apply, a Will-maker doesn’t necessarily need to have been living on a reserve at the time of their death. If there is uncertainty as to whether or not the Indian Act applies when someone passes away, Indigenous Services Canada (ISC) can make this determination with the death certificate of the deceased.
If a Will-maker was not “ordinarily resident,” regardless of their Indian status, their Will is not subject to the Indian Act and must be probated and varied under WESA. If it is determined that ISC has jurisdiction over a Will-maker’s estate, then the Indian Act will govern. ISC is also responsible for probating the Will with the approval of the Minister of Indigenous Services (The Minister). This is the official confirmation that the Will meets the formal requirements of the Indian Act.
Variation and Challenges to Wills under the Indian Act
The first steps to challenge a Will that is subject to the Indian Act are to obtain a copy of the death certificate and write a letter to ISC outlining your evidence. While this can be done by individuals, it is advisable to retain an Estate Litigation lawyer to assist with drafting the letter and presenting legal evidence.
If a Will is challenged, ISC will read the Will and written evidence from family members and the Executor to ascertain the Will-maker’s true intentions and motivations behind the bequests. There are a few key differences to the variation provisions in WESA and 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 who are 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 Indian 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 Indian Act only those who are related to the deceased by blood are considered as heirs for the purpose of intestacy. 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 on intestacy distribution.
ISC can usually reach a determination without going to Court. However, if the situation is complicated and can only be decided by having witnesses testify in person, ISC will bring the file to the Minister to review and may request that the jurisdiction be transferred to the British Columbia Supreme Court. If the Minister grants consent to the transfer, the Court is entitled to apply provincial legislation (such as WESA).
If you or someone you know is facing the Court on an Estate matter, it is advisable to have an Estate Litigation lawyer representing your best interests, as legal evidence must be presented expertly to the Supreme Court to achieve your desired outcome.