Estate planning, estate administration, and intestacy under the Indian Act: Practical considerations for legal professionals

According to the 2021 Canadian census 1,807,250 people who responded self-identified as either “Aboriginal” or “Indigenous”. Of this group 1,048,405 self-identified as “First Nation”⁴ and just over two-fifths (being 40.6%) reported living on reserve in 2021.⁵ It is therefore possible that the legal standards detailed in this article could impact the estate planning, estate administration, and intestacy needs of approximately 600,000 people currently living in Canada.

The Truth and Reconciliation Commission (“TRC”) was created through a legal settlement between Residential School survivors, the Assembly of First Nations, Inuit representatives, and the parties responsible for the creation and operation of the residential schools, being the Canadian governments and the relevant church bodies (see “II. Historical Context” below for additional discussion). The TRC concluded in 2015 and issued 94 Calls to Action in order to “redress the legacy of residential schools and advance the process of Canadian reconciliation.”⁶ The proposed actions call on all levels of Canada’s governments, churches, public institutions, and non-Indigenous Canadians to work together to repair the harm caused by residential schools and begin the process of reconciliation. Call to Action number 27 is relevant to this article. It states that:

We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Abori­ginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolu­tion, human rights, and anti-racism (“CTA27”).

In line with this call, the Law Society of Ontario states that its duty is to “protect the public interest, to maintain and advance the cause of justice and the rule of law, to facilitate access to justice for the people of Ontario.” This article has been drafted to help equip legal professionals in their work serving all peoples in Canada competently and to act as a resource for legal professionals to individually and collectively continue in the development their cultural competency and other associated actions in the fulfillment of CTA27. Six hundred thousand people is not an insignificant number of people that have these unique legal needs outlined in this article. Moreover, the authors posit that the legal profession in Canada has a moral and professional duty to equip itself to help its membership best serve the legal needs of Indigenous peoples in Canada for competent estate planning, estate administration, and navigating relevant intestacy rules. The final section (being “V. Practical Considerations for Legal Professionals” below) will outline some of the authors’ practical considerations for fellow legal professionals to implement to work to competently serve the Indigenous peoples in Canada.

This article first details a brief history regarding Indigenous peoples in Canada (see “II. Historical Context” below). It then provides a brief legislative overview (see “III. Brief Legislative Overview” below) and then details the sections of the Indian Act which do apply uniquely to some Indigenous peoples in Canada presently and specifically those governed by the Indian Act for their estate planning, estate administration, and intestacy needs (see “IV. Application of the Indian Act” below) which also details the limited jurisprudence and case law that details the application of this statute with practical effect. The article finally provides the authors comments on the practical considerations for legal professionals relating to this topic (see “V. Practical Considerations for Legal Professionals” below).

When writing about Indigenous peoples in Canada it is imperative that at least a brief discussion regarding historical context is included in any discourse. This short section is in no way intended to be comprehensive and the authors direct the readers to better inform themselves by consulting the TRC’s final report⁷ and resources at the National Centre for Truth and Reconciliation⁸ and the referenced resources in this article as a start.

The Indigenous peoples living in Canada have a historically problematic relationship with both the federal and provincial governments of Canada. Through the mechanisms of law, institutions, and public policies – such as the Indian Act, the residential school system, and the reserve system – the governments of Canada have attempted to colonize the Indigenous peoples and effectively deal with what was termed as the “Indian problem.”^9,10 The effects of colonialism, and especially the residential school system, have fundamentally impacted the Indigenous peoples across Canada and understandably instilled a deep distrust of the Canadian governments.¹¹

According to Professor Sa’ke’j Youngblood Henderson eurocentrism is a source of colonialism. He describes this phenomena as the “dominant intellectual and educational movement that postulates the superiority of Europeans over non-Europeans”.¹² This is evident through Canada’s historical treatment of its Indigenous peoples. For instance, upon contactBritish colonialists systematically attempted to instill a social policy of assimilation which was enforced by the governments over the Indigenous peoples of the “New World”.¹³ These assimilationist policies were justified through the idea that these Indigenous peoples were merely “savages” and in great need of the civilizing practices of the British to attain their “higher civilization”.¹⁴ This policy was reflected through the colony of Canada’s laws and government practices. According to Indigenous scholar Andrew Armitage:

The expanding British Empire had its own vision for the future of these peoples, which was expressed in 1837 by the Select Committee on Aborigines of the [British] House of Commons. It was a vision of the steps necessary for them to become civilized, Christians, and citizens – in a word assimilated.¹⁵

Canada continued to enforce this policy past its Confederation through its own laws and policies. This attitude was expressly evident in the young country’s laws and policies aimed at extinguishing what was termed the “Indian problem”.¹⁶ The 1876 Annual Report from the Department of the Interior¹⁷ communicates the Canadian government’s attitude towards the Indigenous peoples:

Our Indian legislation generally rests on the principle that the Aborigines  are to be kept in a condition of tutelage and treated as wards or children  of the state ... it is clearly our vision and our duty, through education and other means to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship [emphasis added].¹⁸

Examples of the enactment of this legislation include the creation of the reserve system and more aggressively through the residential school system.

(a) Reserve System

A reserve is a tract of land set aside for the exclusive use of an Indian band through treaty agreements and the Indian Act.¹⁹ Through the reserve system, the Crown holds the land in trust for the band members who have the right to live on the reserve lands.²⁰ The reserve system was implemented as part of the federal government’s program to “civilize” the Indigenous peoples through the introduction of agriculture, Christianity, and a sedentary lifestyle based on private property.²¹ The government viewed the creation of reserves as a pragmatic solution to conflicts between Indigenous peoples and settlers over land.²² Notably the granting of reserves was the Canadian government’s prime negotiation strategy throughout the treaty eras: the Upper Canadian treaties (1818-1862), the Southern Numbered treaties (1871-1877), and the Northern Numbered treaties (1899-1921).²³

However, despite their widespread use these reserves were often inadequate to support the Indigenous peoples’ traditional subsistence living.²⁴ Historian Keith Thor Carlson calls the creation of reserves “the government’s attempt to skirt its political and legal obligation to negotiate with Aboriginals and to provide compensation for alienated land and resources. In effect it was an effort to extinguish Aboriginal title through administrative and bureaucratic means.”²⁵ According to Indigenous scholar Rosemary Bartlett:

At a stroke of the pen, reserves divided up not only lands, but peoples and nations that had existed for hundreds of years. Families, houses and clans that had hunted and gathered together for generations were abruptly and arbitrarily joined with other families and houses, disrupting social networks and long established kinship systems that had deter­mined who could hunt, fish and gather in particular areas.²⁶

This system was grounded in a Eurocentric belief that the Canadian government had responsibility to “civilize” the Indigenous “savages”. As such reserves were granted to Indigenous clans with the belief that they would not be needed in a generation.²⁷ The thinking was that when paired with the residential school system the Indigenous peoples would be assimilated into Canadian society and would not need such tracts of land for traditional (termed as “uncivilized”) Indigenous practices.

(b) Residential School System

According to the TRC the residential school system was formally in effect from 1849 to 1996.²⁸ The first school opened in Alderville, Ontario in 1849.²⁹ The Indigenous children of Ontario were initially targeted. However, eventually hundreds of residential schools were established across all of Canada’s provinces and territories with the last one closing in Iqaluit, Nunavut in 1996.³⁰

The foundations of the residential school system were in the pre-Confederation Gradual Civilization Act which assumed the inherent superiority of the British.³¹ Federal government leaders concluded that the “Indian problem” could be solved by taking Indigenous children from their families at an early age and instilling Eurocentric societal practices in them throughout their time as a permanent resident of the state-sponsored residential schools.³² The goal was that upon graduation from the residential schools Indigenous children would join what wastermed “Euro-Canadian society” and not return to their reserves. This would extinguish effectively Aboriginal society.³³

The Government of Canada funded and provided resources for the residential schools while the Church staffed and administrated the schools.^34,35 This was done on a limited and strict budget and the provisions and services provided were of poor quality.³⁶ Attendance was compulsory and Indigenous languages, customs, and habits were suppressed.³⁷

The Royal Commission on Aboriginal Peoples found that, “[t]he bonds between many hundreds of Aboriginal children and their families and nations were bent and broken with disastrous results”.³⁸ The TRC concluded that the historical experience of residential schools constituted an act of cultural genocide by Canadian government authorities.³⁹ The effects of colonialism and especially the residential school system have fundamentally impacted the Indigenous peoples across Canada and understandably instilled a deep distrust for the Canadian governments.⁴⁰ This brief history informs the present laws.

3. Brief legislative overview

The federal government possesses exclusive jurisdiction over “Indians and land reserved for Indians” under subsection 91(24) of the Constitution Act, 1867.⁴¹ The federal government exercises its parliamentary authority over the domestic affairs of some Indigenous peoples in Canada and the laws relating to their estate planning (i.e., wills), estate administration (i.e., estates), and intestacy needs through subsections 42-50.1 of the Indian Act and the Indian Estates Regulations⁴² (i.e., if they are governed by these laws). In addition, the Family Homes on Reserves and Matrimonial Interests or Rights Act (“Family Homes Act”)⁴³ now provides protection to spouses or common-law partners of Indigenous peoples who are not otherwise governed by the Indian Act.

Of note, the Indian Act does not supplant common law rules such as those related to the execution of the will, the requirement of testamentary capacity, or the doctrine of suspicious circumstances.⁴⁴ The only caveat is that courts have taken the view that they must “strictly interpret the provisions [of the Indian Act] ... which deny Indians the testamentary rights enjoyed by other Canadians”.⁴⁵

In addition to federal legislation, it appears that provincial law applies to the wills and estates of Indigenous peoples (who are governed by the Indian Act) where such law does not contradict the provisions of the Indian Act.⁴⁶ In Re Williams Estate, the British Columbia Supreme Court ruled that provincial law applies where it is not incompatible with the Indian Act.⁴⁷ However, this decision was contradicted by the Manitoba Court of Appeal in Canada (Attorney General) v. Canard.⁴⁸ In Canard, Justice of Appeal Dickson, as he then was, found that “it was plainly the intention of Parliament, in enacting [subsections. 42-50.1]” of the Indian Act to constitute “a comprehensive testamentary code in respect of Indians ... provincial legislation of the subject of wills, devolution of estates and surrogate procedures applicable to others would not apply to Indians or to the administration of their estates unless the minister so directed”.⁴⁹ The Supreme Court of Canada did not comment directly on this matter in the Canard appeal.⁵⁰

Today’s approach posits that provincial laws which are not inconsistent with the Indian Act and the Indian Estates Regulations may be applied through the application of section 88 of the Indian Act.⁵¹ This section states that:

Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.

A First Nation’s customary law may also be relevant to the administration of their estates.^52,53 In Louie v. Canada, John Louie asked the Minister of ISC to invalidate his brother’s will on two grounds: (1) that his brother lacked testamentary capacity and (2) that the will was “contrary to the custom of his First Nation, the Okanagan Indian Band”.⁵⁴ The Minister denied the application and Mr. Louie appealed to the Federal Court. In considering the case, Grammond J. stated as follows:

John Louie argues that his brother’s will disposes of reserve land in a manner contrary to Okanagan’s interests, which is a ground for voiding it under paragraph 46(1)(d) of the Act. This would result from the fact that the will is contrary to Okanagan’s custom. John Louie filed evidence tending to show that Okanagan’s custom requires holders of certificates of possession to transmit their lands to their eldest son or daughter. If someone does not have children, they must bequeath their land to their closest relative, in order for land to remain in the family. Jimmie Louie would have acted contrary to custom when he bequeathed his land to Ms. Brewer, who is not a member of the Louie family.

Assessing this argument involves a question of Canadian law and a question of Okanagan law. The Canadian law question is whether the reference to the “interest of the band,” in paragraph 46(1)(d), amounts to a reference to Okanagan law (or “custom”). In other words, Canadian law would consider that what is contrary to Okanagan law would be against Okanagan’s interest, within the meaning of paragraph 46(1)(d). The Okanagan law question is whether there is a prohibition on bequeathing land outside of one’s family.⁵⁵

In dismissing the appeal, Grammond J. stated as follows:

As I am of the view that John Louie has not made out his case under Okanagan law, I will say as little as possible about the Canadian law issue. I will simply assume, without deciding, that the “interest of the band” in paragraph 46(1)(d)⁵⁶ includes compliance with a First Nation’s laws (or “customs”), and that this explicit language, which is absent in other provisions of the Act dealing with certificates of possession, is a basis for distinguishing cases such as Boyer v R, [1986] 2 FC 393 (CA) [Boyer]; Tsartlip Indian Band v Canada (Minister of Indian Affairs and Northern Development), [2000] 2 FC 314 (CA); and Songhees Indian Band v Canada (Minister of Indian Affairs and Northern Development), 2006 FC 1009, [2007] 3 FCR 464, aff’d 2008 FCA 46 [Songhees].⁵⁷

While John Louie was not successful in making out a case under Okanagan law, Louie v. Canada does not prohibit the consideration of customary law for future cases.

4. Application of the Indian Act

The Indian Act applies to “Indians” (i) with status; and (ii) who “ordinarily reside” on reserve land.⁵⁸

(a) The Test

(i) Criteria 1: “with status”

Indian status (sometimes called “registration”) provides certain rights and legal standing to individuals registered under the Indian Act. In order to receive status, an Indigenous person must be a First Nation. For clarity, this means that with respect to estate planning and estate administration, the Indian Act applies only to some First Nation peoples and does not apply to Métis or Inuit Peoples.⁵⁹ Métis and Inuit peoples are recognized as “Indian” under subsection 91(24) of the Constitution Act, 1867; however, they are not eligible to receive status under the Indian Act.^60,61

Eligibility for status is based on descent in one’s family.⁶² Understanding how to qualify can be difficult, as the definition and criteria has been altered many times over history. For example, in 1951, amendments to the Indian Act’s subsection 12(1)(b) removed status of any woman who married a non-Indian, including American “Indians” and non-status Indigenous men in Canada.⁶³ Currently, a person may be eligible for status if at least one parent is or was entitled to be registered in accordance with the conditions listed in subsection 6(1) of the Indian Act.⁶⁴

(ii) Criteria 2: “ordinarily reside on reserve”

Sections 42-50.1 apply only to Indigenous persons with status who reside on a reserve. Generally speaking, reserve land is land set aside by the federal Crown for the use and benefit of a particular First Nation.⁶⁵ The Crown is the legal title owner of the land, but members of the First Nation have beneficial ownership and possession of the land, evidenced by way of a possessory certificate.

Dickson J.A. of the Manitoba Court of Queen’s Bench defined “ordinarily resident” in Canard to mean:

[R]esidence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence... it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.⁶⁶

This was affirmed by the Supreme Court of Canada.⁶⁷

Accidental or temporary absences, such as education or medical care, will not rescind a finding of “ordinary resident”. In Earl v. Canada (Minister of Indian & Northern Affairs), the court ruled that an Indigenous man with status who lived on a reserve for the majority of his life did not lose his “ordinarily resident” status because he was moved off of the reserve into a long term care home for his final years of life.⁶⁸ Frank Jack, the deceased, was a lifetime member of the Okanagan Indian Band. He lived on reserve land until his health deteriorated in 1994, at which point he was moved into a nursing home off of reserve land. Frank Jack was declared mentally incompetent in 1995. He resided in the nursing home for the next nine years. When his health further declined, he was moved into an extended care facility on the Priest Valley Okanagan Indian Reserve for four months until his death in 2001.

Frank Jack’s sons had his Will approved by the Minister shortly after Frank Jack’s death. The approval was contested by two of Frank Jack’s daughters, who had not been provided for in the Will. They argued that Frank Jack was not a lifetime member of the Okanagan Indian Reserve at the time of his death, and thus the Minister had no jurisdiction to approve the will.

The case was dismissed. Frank Jack was found to be an “ordinary resident” on a reserve for two reasons. First, the laws governing the descent of property should not vary when an individual is required to live off reserve due to illness. Residence in a medical facility is not a customary mode of life but rather is a special residence. Second, subsection 4(3) of the Indian Act only requires that Frank Jack ordinarily be resident on a reserve, not the reserve or any particular reserve. This decision has been affirmed in subsequent jurisprudence: see Dickson Estate, Re, 2012 YKSC 71 (Y.T. S.C.).

The Indian Act differs from provincial legislation with respect to wills and estates in the following ways: (1) Federal Ministerial Powers; (2) Intestacy; (3) Land Distribution; (4) Spousal Relief; and (5) Dependant Relief. These five poignant differences are highlighted below, and are contrasted with Ontario’s Succession Law Reform Act⁶⁹ to provide context and comparison. The chart provides a general summary of the differences.⁷⁰ There may be additional differences with other provincial legislation (for example, spousal entitlement upon intestacy differs across provinces).

	Indigenous Wills [Applies to Indigenous persons with status and living on reserve]	Non-Indigenous Wills [Applies to people living in Ontario and not on reserve land]
(a) Formal Requirements of a Will	Indian Act, s. 45(2): The Minister [of Indi­genous Relations Cana­da] may accept as a will any written instrument signed by an Indigenous person with status and living on reserve, in which they indicate their wishes or intention with respect to the disposition of their property upon their death. Indian Estate Regula­tions, s. 15: Any written instrument signed by an Indian may be accepted as a will by the Minister whether or not it conforms with the requirements of the laws of general application in force in any province at the time of the death of the Indigenous person with status and living on reserve.	Succession Law Reform Act, ss. 3, 4: A will must be: in writing; signed by the testator or some other person in their presence and by their direction; signed by the testa­tor in the presence of two or more attesting wit­nesses present at the same time; and signed by two or more of the attesting witnesses in the presence of the testator. Succession Law Reform Act, s. 21.1(1): If the Superior Court of Justice is satisfied that a document or writing that was not properly exe­cuted or made under this Act sets out the testa­mentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, or­der that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.
(b) Ministerial Powers	Indian Act, ss. 42-45: 42 The Minister may: appoint executors of wills and administrators of estates of deceased Indigenous person with status and living on re-serve, remove them and appoint others in their stead; authorize executors to carry out the terms of the wills of deceased Indigenous person with status and living on re­serve; authorize administra­tors to administer the property of Indigenous person with status and living on reserve who die intestate; carry out the terms of wills of deceased Indi­genous person with sta­tus and living on reserve and administer the prop­erty of those who die intestate; and make or give any order, direction or find­ing that in their opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42. ... 45 (3) No will executed by an Indigenous person with status and living on reserve is of any legal force or effect as a dis­position of property until the Minister has ap­proved the will or a court has granted probate thereof pursuant to this Act.
(c) Intestacy	Indian Act, s. 48: 48(1),(2)(a) Where there is a spouse and no issue: spouse receives the first $75,000 of the estate and remainder of estate; 48(2)(b) Where there is a spouse and one child:71 spouse receives the first $75,000 of the estate; one-half of the remainder will go to the spouse or common law partner, and the other half will go to the child; 48(2)(c) Where there is a spouse and more than one issue: spouse re­ceives the first $75,000 of the estate; one-third will go to the surviving spouse or common law partner, and the other two-thirds will be di­vided equally among the children; 48(2) Where a child has died leaving issue and that issue is alive at the date of the intestate’s death: the surviving is­sue shall take the same share of the estate as if the child had been living at that date; 48(4) Where an intes­tate dies leaving issue: the estate shall be dis­tributed, subject to the rights of the survivor, if any, per stirpes among such issue; 48(5-8) Where the de­ceased has no spouse, children, or grandchil­dren at time of death: the next heirs in line are: (a) parents; (b) brothers or sisters, and “where any brother or sister is dead the children of the deceased brother or sister shall take the share their parent would have taken if living, but where the only persons entitled are children of deceased brothers and sisters, they shall take per capita”; or next of kin.; Note that under the In­dian Act nieces and ne­phews are not entitled to an intestate’s land on a reserve or to any money from the sale of said land: see Okanagan In­dian Band v. Bonneau, 2003 BCCA 299 (B.C. C.A.), leave to appeal refused 2004 Cars-wellBC 128 (S.C.C.).	Succession Law Reform Act, ss. 44-46: 44 Where there is a spouse and no issue: spouse receives the first $350,000 of the estate and remainder of estate; 45, 46(1) Where there is a spouse and one child: spouse receives the first $350,000 of the estate; one-half of the remainder will go to the spouse and the other half will go to the child; 46(2) Where there is a spouse and two or more children: spouse receives the first $350,000 of the  estate; one-third will go to the surviving spouse and the other two-thirds will be divided equally among the children; 46(3) Where a child has died leaving issue and that issue is alive at the date of the intestate’s death: the surviving is­sue shall take the same share of the estate as if the child had been living at that date; 47(1) Where a person dies intestate in respect of property and leaves issue surviving him or her: the property shall be distributed, subject to the rights of the spouse, if any, equally among his or her issue who are of the nearest degree in which there are issue surviving him or her; 47(3-7) Where the de­ceased has no spouse or issue: the next heirs in line are (a) parents; (b) brothers and sisters, "and if any brother or sister predeceases the intestate, the share of the deceased’s brother or sister shall be distributed among his or her chil­dren equally"; (c) ne­phews and nieces; (d) next of kin of equal degree of consanguinity; and (e) the Crown.
(d) Land Distribution	Indian Act, ss. 20, 24: Reserve land is held by the federal Crown for benefit of the First Na­tion. Indigenous persons living on reserve land have only a possessory interest evidenced by way of possessory certi­ficate. This may be be­queathed to a First Nation band member, but this transfer must be approved by the Minis­ter.	Succession Law Reform Act, ss. 25, 26: Land held in fee simple by deceased as sole own­ers, joint tenants, or te­nants in common. There are no obligations on the owner to deal with their property upon death in a specific way.
(e) Spousal and Dependent relief	Indian Act, Spousal Re­lief: In addition to spouses, common-law partners are included as potential beneficiaries (or "survi­vors"). The matrimonial home can only be passed on to a survivor if the survi­vor is Indigenous and has status. Some reme­dies to this are under the Family Homes on Re­serves and Matrimonial Interests or Rights Act. Indian Act, Dependant Relief: 46(1) A Minister may declare a will to be void, in whole or in part, if "the terms of the will would impose hardship on persons for whom the testator had a responsi­bility to provide."	Succession Law Reform Act, Spousal Relief: Common-law partners have no automatic prop­erty rights as they are not included in the definition of spouse. Common-law partners may be able to qualify for dependant re­lief support. Succession Law Reform Act, Dependant Relief: 58(1) Where a deceased, whether testate or intes­tate, has not made ade­quate provision for the proper support of his dependants or any of them, the court, on ap­plication, may order that such provision as it con­siders adequate be made from the estate of the deceased for the proper support of the depen­dants or any of them. R.S.O. 1990, c. S.26, s. 58 (1).

The Minister of Indigenous Services (the “Minister”) is granted significant authority over Indigenous wills and estates. These powers are granted through sections 42-46 of the Indian Act, along with the Indian Estate Regulations.

The Minister’s powers include: appointing and authorizing executors and administers of estates;⁷² administering the property of intestate estates (section 43); declaring a will to be void in whole or in part (section 46).⁷³ The Minister may also “fix” wills that fail to technically comply with the Indian Act, as per section 15 of the Indian Estate Regulations. Significantly, no will governed by the Indian Act is of legal force or effect until the Minister has approved the will or a court has granted probate.⁷⁴

ISC is the body responsible for estate services for First Nations in all provinces. Crown-Indigenous Relations and Northern Affairs Canada (“CIRNAC”) is responsible for estate services for First Nations in the Yukon and Northwest Territories.⁷⁵ They are to be contacted by e-mail⁷⁶ when a person living on reserve passes in order to begin the estate administration process. Their position is that “estate administration is a private family matter and ISC encourages family members or their nominees to manage the estates of those who have died”.

The Indian Act does not recognize the jurisdiction of First Nations to make laws related to wills and estates.⁷⁷ However, in several instances, federal jurisdiction over wills and estates has been transferred back to certain First Nations under modern treaty agreements that provide for testamentary rights:⁷⁸ see the Westbank First Nation Self Government Agreement,⁷⁹⁸⁰ the Sioux Valley Dakota Nation Self Government Agreement;⁸¹ and the Tla’amin Final Agreement.⁸² Typically when this occurs, First Nations signatories have largely deferred to provincial laws to govern their rules of succession.⁸³

There are no provisions in provincial legislation that grant such extensive authority to a minister. Ministers have no authority over the validity of wills. Courts in certain jurisdictions have the ability to alter wills where necessary. For example, subsection 21.1(1) was added to Ontario’s Succession Law Reform Act in 2021, which provides the Superior Court of Justice with the power to, on application, validate wills that have “substantially complied” with the statutory requirements for a valid will.

The extensive ministerial power highlights the patriarchal relationship that continues to exist between the government and Indigenous communities. It is unclear why these actions are still required to be undertaken by the Minister, rather than having such powers be delegated to the First Nations bands themselves. The court could still act as a safeguard against formally non­compliant wills and other estates issues, as is done in Ontario and other provinces.

(d) Intestacy

Up to 90% of Indigenous peoples living on reserve die “intestate” or without a will.⁸⁴ For context, in 2022, 51% of Canadians who are not Indigenous peoples with status did not have a will in place.⁸⁵ Intestacy complicates and delays the administration of Indigenous estates, and may fail to capture the deceased’s testamentary wishes.

Subsections 48(1) and (2) of the Indian Act dictate distribution upon intestacy for status Indigenous persons living on reserve. The rules prescribed by these provisions are different than in provincial legislation. Under the Indian Act, spouses are entitled only to the first $75,000 of an intestate’s estate, compared to $350,000 under the Succession Law Reform Act.⁸⁶ Unlike provincial legislation, under the Indian Act the Minister (via ISC or CIRNAC) becomes the default administrator where there are no family or community members available to administer the estate of the intestate deceased.⁸⁷ Note that where a will has been declared invalid, an individual is assumed to have died intestate.⁸⁸

It is unlikely that nieces and nephews can inherit a possessory interest in reserve land under the Indian Act. This was confirmed by the British Columbia Court of Appeal in Okanagan Indian Band v. Bonneau.⁸⁹ In this case, a member of the Okanagan Indian Band died intestate. His only living relatives were several nieces and nephews, none of whom were members of the Okanagan Indian Band. The nieces and nephews were denied both the possessory right to the reserve land, and entitlement to the money from the sale of the land. The court held, “by operation of section 48(8), in all circumstances where the estate devolves to next-of-kin, an interest in reserve land is excepted if the next-of-kin is more remote than a brother or sister of the intestate. In those cases, the interest in land reverts to the Crown for the benefit of the band” (para. 48).

Under provincial legislation, distribution on intestacy follows consanguinity and there is no distinction for land.⁹⁰ Increasing access to knowledgeable and culturally competent lawyers at an accessible cost may result in lower rates of intestacies of Indigenous peoples with status. Although the Truth and Reconciliation Commission does not directly address this, it is in the spirit of reconciliation to promote Indigenous self-governance and independence in all facets of life.

(e) Land Distribution

Reserve land is held by the federal Crown for the benefit of a First Nation (“legal” title).⁹¹ Indigenous peoples with status who live on reserve land only have a possessory interest in the land, evidenced by way of a possessory certificate (“beneficial” title).⁹² An Indigenous person’s ability to leave a testamentary bequest of their possessory interest is restricted in two ways: (1) a possessory certificate may only be bequeathed to a “member of the band”;⁹³ and (2) the transfer of land must be approved by the Minister.⁹⁴ Thus, a beneficiary’s eligibility to receive the certificate is determined by whether they possess status under the Indian Act. While this may be viewed as a limitation on an Indigenous person with status’ testamentary freedom, this restriction exists to preserve reserve land for the defined members of the band.⁹⁵ There are certainly some competing interests involved in this assessment of the current laws.

Sections 20, 24, 25, 26, 49 and 50 of the Indian Act deal with land distribution on a reserve. These provisions are interpreted strictly by the courts and the Minister: see Songhees First Nation v. Canada (Attorney General), 2003 BCCA 187 (B.C. C.A.); R. v. Devereux (1965), 51 D.L.R. (2d) 546 (S.C.C.).

In Songhees First Nation v. Canada (Attorney General),⁹⁶ Irene Cooper, a member of the Songhees First Nation, was in possession of eight lots of reserve land. She leased this land to a lumber company. The Crown collected the rent and remitted Ms. Cooper’s share to her. When Ms. Cooper died, she left the reserve land to her children in a valid will, however, the children did not have status. The Band successfully brought an action against the Crown and the children for recovery of the rent and the land. The Crown appealed. The British Columbia Court of Appeal wrote:

Although there are sections of the Act that permit band members to dispose of their estate as they see fit, there are limitations. Under s. 50(1) a person who is not a band member cannot obtain a right to occupy or possess any of the band’s reserve land. Despite the opening words of s. 50(2), it follows that Irene Cooper could not bequeath her possessory rights to persons who were not Band members. She could only designate who is to receive the proceeds of a sale under s. 50(2), or the payment for improvements under s. 50(3) in the absence of a sale and an ensuing reversion to the Band. The section is specific as to the circumstances under which a person who is not a band member can benefit from reserve lands. There is no basis for inferring that Parliament intended that such a person could also benefit by receiving the revenue from the land pending a sale under s. 50(2) or a reversion to the band under s. 50(3).

Section 18(1) contains a broad statement of policy and goes a long way to defining the scheme of the reserve provisions in the Act. It would require specific words in the statute to override the intent of the statute made clear in that section. Reserve lands are to be used for band purposes or for the benefit of individual members of the band. Any other use or benefit could come about only by specific words in the statute to that effect.⁹⁷

Ultimately, the Crown was unsuccessful in the appeal and the Band was given the possessory interest in the land. As this case demonstrates, section 50 of the Indian Act seeks to preserve reserve land for the defined members of the band. This is aligned with one of the central purposes of the Indian Act, which is that reserve land is held by the Crown “for the use and benefit of the respective bands for which they were set apart”.⁹⁸

In R. v. Devereux, the Supreme Court of Canada ruled on whether a non-band member who had been left band land in a will could continue to have possession over the land.⁹⁹ A non-Indigenous man, Mr. Devereaux, entered into a 10-year leasing agreement of farm land on a reserve with a member of the Six Nations Band. This lease was permitted by the Crown. When the band member died, she devised the land to Mr. Devereaux in her will, despite him not being Indigenous. The lease expired in 1960, and the Minister issued two successive permits to Mr. Devereux under subsection 28(2) of the Indian Act,¹⁰⁰ which permitted him to use and occupy the lands for agricultural purposes. The Band Council asked Mr. Devereux to vacate the land after the permits were up and alleged that Mr. Devereaux was unlawfully in possession of the land. When he refused, the Attorney General of Canada brought this matter to the court. The Supreme Court of Canada ruled that after the permit period was complete, Mr. Devereaux could receive the proceeds generated from the sale of the possessory right in the land, though he could not continue to live there. The only rights of Mr. Devereux were those given under section 50,¹⁰¹ which provided for a sale of the land and the receipt by him of the proceeds. Any arrangements made by Mr. Devereux with the Crown were irrelevant, since he had no right to remain without an arrangement made by the Minister under subsection 58(3) or 28(2).

An important consideration for legal professionals is that many First Nations have their own ways of distributing land. This means there may be little documentation with respect to possession of reserve land.¹⁰² Where there is a lack of “traditional” record-keeping, certainty of tenure and the ability to bequeath a possessory certificate is not absolute. This is a primary challenge that must be considered while drafting wills under the Indian Act: legal professionals must consider how these rules impact a grantor’s rights and a beneficiary’s eligibility. Legal professionals involved in this work will must ensure that they ensure that they are well versed on the impact of the unique ministerial powers which the governments retain with regards to the ultimate distribution of land following an individual’s death as well as the fact that a distinct estate administration process must be followed if this Indigenous person died with a valid will in accordance with the Indian Act. See “V. Practical Considerations for Legal Professionals” for further discussion.

(f) Spousal Relief

The “matrimonial” (or family) home presents a unique challenge for couples who live on reserve land as a surviving spouse’s continued residence is not guaranteed. This issue is particularly problematic where the surviving partner¹⁰³ is a non-band member. As discussed under the Land Distribution section, subsection 50(1) of the Indian Act provides that “a person who is not entitled to reside on a reserve does not by devise or descent acquire a right to possession or occupation of land in that reserve”. They may be entitled to the proceeds from the sale of the land, but not the land itself.¹⁰⁴

There are certain remedies for spouses and common-law partners under the Indian Act and the Family Homes Act regarding the unique treatment of the matrimonial home. Under subsection 46(1) of the Indian Act, the Minister may declare a will to be void if the will fails to appropriately provide for a person (i.e. a spouse or a child) for whom the testator had a responsibility to provide.

The Family Homes Act was introduced in 2013 to fill in some of the legislative gaps with respect to protecting Indigenous and non-Indigenous spouses living on reserve land. Sections 14, 21, and 36 of the Family Homes Act offer some support to surviving partners who do not have status. As per section 14, a surviving partner may make an application to occupy the family home for 180 days (approximately six months) after the date of their partner’s death. Failure to do so may result in a charge of trespassing, as it did in Bradfield Estate v. Brydges¹⁰⁵ (although in this case, a surviving non-status partner refused to leave the family home, despite the land being left to the deceased’s son who had status). This unfortunately may be a practical reality for non-status partners living on reserve land. There certainly are a number of individual and collective rights at play when engaging in the application of the current law with regards to spousal relief.

Sections 34-36 of the Family Homes Act provide that a spouse may make an application for an equalization payment for the matrimonial home within 10 months of the deceased band-member spouse or common-law partner’s death. Enforcement of equalization payment is difficult, even where court-ordered, due to financial, legal and social concerns that certain bands face.¹⁰⁶ Section 21 of the Family Homes Act permits surviving spouses to apply for an order for exclusive possession of the family home, but these applications are rarely successful. Many reserves face housing shortages, which prevents members with status from being able to live on reserve land.¹⁰⁷ This is contrasted with provincial treatment of the matrimonial home, where both parties are equally entitled to share in the full value at the date of separation or death regardless of who brought the home into the marriage.

Toney v. Toney Estate¹⁰⁸ is one of the only published cases wherein an elderly and disabled widow without status was successful in obtaining an order for exclusive possession of the matrimonial home located on reserve land. Ms. Toney shared the home for over 30 years with her husband, the First Nation’s Chief, until his death. In applying the test laid out in subsection 21(3) of the Family Homes Act, the court permitted exclusive possession to Ms. Toney due to her age, medical condition, financial situation, length of time and money invested into the property, and the fact that the deceased had left the property to Ms. Toney in his will. For similar reasons, Ms. Toney was also granted an order for an equalization payment for the money that she and her husband had put into the home over their years of living there. Ms. Toney was not granted the certificate of possession of the home. The First Nation faced an extreme housing shortage, and the certificate was to revert to the Band if and when Ms. Toney failed to maintain the property, re-partnered, or passed away. This decision was highly unusual and fact specific, and should likely not be relied upon by non-Indigenous spouses in the future.

(g) Dependant Relief

There is no formal dependant relief provision under the Indian Act. A dependant may include a spouse or common-law partner, a parent, grandparent, child, or sibling under certain circumstances. However, dependants may have some recourse against the estate under subsection 46(1)(c), discussed above: a Minister may declare a will to be void, in whole or in part, if “the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide”.

A court cannot declare a will governed by provincial law to be void if a spouse, parent child or sibling is not included. However, these individuals may make a claim for dependant relief if they have not been adequately provided for. For example, under subsection 58(1) of Ontario’s Succession Law Reform Act, if a court determines that any of the deceased’s dependants are not provided for, the court may redistribute the estate’s assets in order to provide the dependent with adequate support.

5. Practical considerations for legal professionals

The most fundamental considerations which legal professional should adopt from this resource relate to these legal practitioners “getting to know their clients” as cultural competency and understanding are highly important in this area of the law.¹⁰⁹ The authors offer the following comments for consideration:

• Legal professionals offering estate planning, estate admin­istration, and intestacy advising services to the general public should ensure that their intake procedures include questions to ask each individual client sensitively and appropriately to ascertain if the Indian Act or other laws outlined in this article may apply to the legal services which that individual needs.
• If it is determined that the client is an “Indian” pursuant to the Indian Act and ordinarily lives on a reserve (or is likely to) then the legal professionals should ensure that the different legal standards which apply to this client are known and followed in the course of the client-instructed work.
• Legal professionals should design and implement practice management processes which are tailored to different clients’ estate planning, estate administration, and in­testacy needs including checklists, due diligence searches, and the appropriate oversight of competent legal assis­tants and clerks. This should be replicated for estate planning for clients governed by the Indian Act as well.
• In the estate planning context:
  
  • What laws apply to the estate planning process need to be clarified as the first inquiry. As stated above, the application of section 88 of the Indian Act is not settled law and consequently it is possible that provincial law may apply in the estate planning context for some “Indian” clients ordinarily living on reserve. This should be explored as should what provincial or territorial laws should apply.
  • Additionally, the legal professional must ascertain whether any customary laws may exist which could impact the estate planning laws relevant to the “Indian” client ordinarily living on reserve. These customary laws may be available as self-govern­ment agreements or in forms otherwise adopted by the band which the “Indian” client ordinarily living on reserve may also be a member of. Due diligence by the legal professional to ascertain whether any customary laws exist and what those sources of laws may be must be undertaken with the cooperation of the client. It may be appropriate to reach out directly with the band or community with the client’s consent.
  • Further, limitation of land distribution and its impact on testamentary freedom must be consid­ered while drafting a will governed by the Indian Act, particularly where a spouse of the “Indian” client ordinarily living on reserve person does not have status. Questions relating to all parties’ status under to the Indian Act should be asked and appropriately factored into the estate plan.
  • Once the legal standards have been confirmed for an “Indian” client ordinarily living on reserve’s estate plan, the drafting legal professional must ensure that the drafted documents (i.e., the will) are carefully drafted to account for the different legal standards. This means that legal professionals cannot use template documents used for other clients who the Indian Act does not apply to. Due care is required for all provisions because of the significant differences between the sources of law.

• In the estate administration context:
  • If a legal professional is engaged to assist with the administration of a deceased individual who ordinarily lived on reserve at their date of death who died with a will pursuant to the provisions of the Indian Act (see directly below regarding intestacy) then that legal professional should ensure that they are acquainted with the distinct estate administration process (i.e., probate) process which they must follow. For instance, the legal profes­sional will not apply to the courts as part of the administration process. The legal professional instead will very likely administer the estate by making a submission to the Minister of the ISC and following that separate process.
  • The legal professional should also ensure that the will conforms with the relevant legal standards for the deceased (i.e., the Indian Act and its regula­tions, provincial estate administration laws, or customary laws).
  • The legal professional must also acquaint them­selves with the rules of land distribution and the timing of same following the deceased’s death for the specific band that the deceased was a member of and, separately, the reserve that the deceased ordinarily resided on prior to their death. These administrative considerations may impact the time­lines which the legal professional must advise their client giving prudent and strategic advice over the estate administration of a deceased “Indian” whom ordinarily lived on reserve prior to their death.
  • Depending on who the legal professional’s client is in the estate planning context, they should consult the Family Homes Act and advise their client based on potential claims available, if relevant.

• In the intestacy context:
  • According to subsection 45(2) of the Indian Act: “The Minister [of Indigenous Services Canada] may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death”. This is distinct from the requirements pursuant to the Succession Law Reform Act (for instance) which requires four formalities as are set out in sections 3 and 4 to be followed in order to ensure that a will is in fact valid at law.¹¹⁰ As such, legal professionals who may be engaged with regards to an estate administration or intestacy matter will need to advise their client and under-take their due diligence regarding whether the estate administration or intestacy rules apply.
  • If the Indian Act applies, then the “survivors” will need to be correctly identified and the legal standards in this statute must be applied and be part of the administration process.

It is a worthy goal for all Indigenous peoples in Canada to trust that a significant number of legal professionals can assist them with their legal needs and especially the highly personal nature of the estate planning, estate administration, and intestacy contexts. Small changes to legal professionals knowledge of the law which impacts the diverse Indigenous communities in Canada and practice management changes could have profound impacts.

6. Conclusion

This article is intended to help equip other legal professionals in their work serving all peoples in Canada competently and specifically Indigenous peoples in Canada who live on reserve and have “status” under the Indian Act with their estate planning, estate administration, and intestacy needs. Legal professionals serving these individuals should ensure that they have a basic understanding and competency in applying the Indian Act, Indian Estate Regulations, and Family Homes Act. It is important to consider the commonalities and differences between the federal laws which apply to some Indigenous peoples in Canada and provincial legislation to better serve status Indigenous peoples living on reserve. This should be required.

Cultural competency and understanding are highly important in this area of the law.¹¹¹ It is the authors’ view that the legal profession should be vigorously working towards upskilling itself with regards to the legal competency related to capably serving the legal questions and needs that all Indigenous peoples in Canada have while also humbly working towards continued growth and learning from Indigenous peoples in Canada. Canada’s legal professionals need to continue to learn about the variety of cultures, customs, practices, and experiences of Canada’s diverse Indigenous populations to continue to become more competent. This article is intended to act as an initial resource for legal professionals to individually and collectively continue in the development of their cultural competency and other associated actions in the fulfillment of CTA27. The authors look forward to this resource being updated as the related law changes and other legal professionals – which of course includes the many Indigenous legal professionals in our profession – develop additional resources to add to the discourse surrounding this important topic.