Area of Law: Indigenous / Aboriginal Law
Answer # 0660
First Nation wills and estatesRegion: Ontario Answer # 0660
The following information has been provided with the assistance of Lakehead University Faculty of Law, Aboriginal Law Studies.
How Wills and Estates of First Nation individuals are handled depends on whether they lived off-reserve, or on-reserve, known as ‘ordinarily resident on-reserve’.
‘Ordinarily resident on-reserve’ means that “an eligible First Nation person lives on-reserve, does not maintain a primary residence off-reserve, but may temporarily live off-reserve for education purposes or for the purpose of obtaining care or services not available on-reserve.”
Estate of First Nation person living off-reserve
If a First Nation individual lives off-reserve, or was living off-reserve when he or she died and did not have a Will, their estate is the responsibility of the province, territory or state where they resided.
Estate of First Nation person living on-reserve
If a First Nation person usually lives or lived on reserve, their estate is handled by Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) (formerly called Indigenous and Northern Affairs Canada – INAC). For these purposes, First Nations people are those who were registered, or who could have been registered, as ‘Indians’ under section 2 and section 6 of the Indian Act (for more information about Indian Status, refer to topic #0652 Nation and Band membership).
Under the Indian Act, CIRNAC can:
- appoint estate administrators or executors
- approve Wills so they can take effect
- transfer reserve lands from the estate to the heirs or beneficiaries
- determine the heirs, if someone dies without a Will
- serve as administrator, if the family does not or cannot settle the estate
- if CIRNAC is the administrator, it Will distribute estate assets according to the Will or the intestacy provisions of the Indian Act
Valid Will under the Indian Act
The formal requirements for the Will of an Indigenous person who lived on-reserve does not have to conform to provincial Succession Law Reform Acts; rather, under section 45(2) of the Indian Act, a Will is valid as long as it:
- is in writing,
- is signed by the person whose Will it is (called the testator), and
- indicates the wishes of the testator with respect to how their property should be dispersed or disposed of.
Invaliding a Will
Under section 46(1) of the Indian Act, the Minister of CIRNAC has the authority to invalidate a Will under certain circumstances.
The Minister can invalidate a Will if:
- it was executed under duress or undue influence (that means the person was put under pressure to sign the Will and they did not want to do so),
- the person whose Will it is did not have capacity (that means the person making the Will did not have the mental ability to do so),
- the Will would impose hardship on those whom the testator should have provided for, such as dependent children,
- the Will disposed of reserve land against the interests of the Band,
- the terms of the Will are vague or uncertain, or
- the terms are against public interest.
Transferring an interest in Reserve Lands
Reserve lands are owned by the Crown for the use and benefit of Band Members. Band members must obtain a certificate of possession from the Band, which shows what share of the reserve land belongs to that individual member – similar to a title deed elsewhere. An interest in reserve lands can only be transferred in accordance with the Indian Act. Specifically, pursuant to section 50 of the Indian Act, an interest in reserve land can only be transferred to other members of the Band that have the right to reside on the reserve Lands. Consequently, a Band member cannot gift his or her interest in reserve land to someone who is not a member of the Band.
For information on Aboriginal and Indigenous laws, visit the Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) website. For further resources, check our Aboriginal Law links.
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