Lessons from Bayliss v. Burnham: Implications for estate planning on First Nation reserves

This article is republished with permission from STEP Inside (Issue 1, 2026). It was co-authored by articling student Amber LeBlanc.
 

Introduction

The recent case of Bayliss v. Burnham^[1] deals with a successful challenge to the purported will of the late Mr. Kenneth Hill (“the will”). Hill was a First Nation person with status under the federal Indian Act^[2] who owned considerable wealth on his death.^[3] He was a member of the Mohawk Nation residing in the Six Nations of the Grand River Reserve and held extensive assets both on and off reserve. His off-reserve assets were estimated at more than $83 million; his on-reserve assets were not valued in court. Because Hill had status and ordinarily resided on reserve land,^[4] the planning and administration of his estate were governed by sections 42 to 50.1 of the Indian Act rather than the provincial Succession Law Reform Act^[5] (SLRA).

Bayliss serves as a cautionary tale for all testators,^[6] regardless of whether they are Indigenous. Testators should carefully consider their situation and ensure that they are taking steps and precautions that align with their end-of-life intentions with respect to the treatment of their families and the distribution of their property.

The case also provides an opportunity for the Canadian legal community to reflect on and improve their practice so that they may better serve Indigenous clients in a manner that meets their testamentary needs.

The Case: Bayliss v. Burnham

The Facts and the Law

Hill was unmarried at the time of his death and was survived by nine children. His son, Ryan Burnham, was the executor appointed by the will, and was the respondent in this case. Seven of the remaining children were the applicants, along with their mothers.

The will was typewritten and had affixed to it a digital signature, rather than a “wet ink” signature, which is required under most provincial legislation. For example, under the SLRA, a valid will must be (1) in writing, (2) signed by a testator^[7] in the presence of two or more witnesses at the same time, and (3) signed by two adult witnesses who are not beneficiaries.^[8] In contrast, under the Indian Act, the minister of Indigenous Services Canada has the power to accept any written instrument signed by a First Nation person with status that indicates their wishes or intention for the disposition of property on death.^[9] The minister needs to confirm (1) whether the will is in writing, (2) whether the will is signed, (3) whether the will indicates the testator’s wishes or intentions, and (4) whether the will disposes of property on death.^[10]

Allegedly, Hill gave the will to his close business partner in a sealed envelope along with verbal instructions: “[I]f anything ever happens to me, give this to my lawyer.”^[11] Hill passed away a few weeks later.

Under the purported will, Burnham, the estate trustee, received all of Hill’s shares in his business and all of his property and land, with the stipulation that 50 percent of the money from the shares or land go to or be held for the benefit of one of Hill’s other sons (the only other child that was not a party to the case). Five of the remaining children were to be left $5 million each, and another was to be left $3 million. One child was left out of the will entirely.

Under the Indian Act, the minister has exclusive authority in relation to all “matters and causes testamentary”^[12] with respect to deceased First Nation individuals with status. Wills under the Indian Act do not have legal effect until the minister has approved the will under section 45(3) or a court has granted probate after the minister has referred the case to the court. This is because the Indian Act is “a comprehensive testamentary code in respect of Indians” and Parliament intended that “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.”^[13]

In Bayliss, the minister referred the will to the court for direction and interpretation.

At trial, Hill was described by witnesses as a private man, with a deep dislike of lawyers, whom he considered to be an “unnecessary evil.” His business lawyer had encouraged him to prepare a will many times throughout the length of their relationship, but Hill delayed doing so. He eventually told his lawyer that he had “taken care of it” and no further discussions were had on the subject.

The Issues

The court addressed four issues in its decision, and answered each as follows:

1. Was the will duly executed pursuant to the Indian Act, the SLRA, or at common law? No.
2. Does the court have the authority to apply the common law when determining the validity of a will made by an Indian who is subject to the Indian Act? Yes.
3. Was the will made under suspicious circumstances? Yes.
4. Did Hill know and approve of the contents of the will? No—there was not enough evidence.

The Court’s Analysis

The court found that the will was not duly executed because the signature was digital. Although the requirements for a valid will under the Indian Act are less stringent than those under provincial legislation, there was not enough evidence for a court to find that Hill himself had applied his signature to the will. This finding was dispositive, yet the court also addressed the remaining questions.

It is generally understood that the Indian Act does not supplant common-law rules, such as those related to the execution of a will, the requirement of testamentary capacity, or the doctrine of suspicious circumstances.^[14] Under relevant common-law principles, if a will is found to be made under suspicious circumstances, the propounder of the will (here, the respondent) bears the burden of proving that the testator knew and approved of the contents of the will.^[15]

The respondent argued that although the minister had referred the will to the court, common-law principles could not apply. The court disagreed and found that it was empowered to apply common-law principles through the transfer of jurisdiction by the minister under section 44(1) of the Indian Act. Section 44(1) provides:

The court that would have jurisdiction if a deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court [emphasis added].

The court found that the will was made under suspicious circumstances and that there was no evidence that Hill knew and approved of the will’s contents.

Takeaways

The decision in Bayliss further clarifies and emphasizes that when jurisdiction to evaluate a will under the Indian Act is given to the court by the minister, the common law related to wills (and will challenges) applies.

With that in mind, the central issue in Bayliss was whether Hill actually signed the will. The facts clearly demonstrate that Hill did not want his lawyer’s involvement in the drafting of his will. However, there are several things that both Hill and his lawyer could have done to endorse the will’s authenticity and acceptability, regardless of the applicable legislation.

Lessons for Testators: What Could Hill Have Done to Properly Execute the Will?

Neither the Indian Act nor provincial legislation requires a testator to retain a lawyer to draft a will. The Indian Act does not make specific reference to the provincial concept of a holographic will,^[16] but any handwritten and signed document expressing testamentary intentions must generally meet the Indian Act’s requirements. Document experts who testified in Bayliss indicated that an original document with a wet ink signature would have provided greater information and could have been examined under a microscope for authenticity, to show that Hill had in fact signed the will. If Hill had handwritten his will and signed the document in wet ink, there is a much greater chance that the document would have been accepted. At a minimum, if Hill had affixed a wet ink signature to the typewritten will, it may have been accepted by the court.

While witnesses are not required under the Indian Act, the court emphasized that if there had been witnesses to Hill’s signature, it would have been highly persuasive for finding that the will was authentic.

Examination of Hill’s electronic devices by a third party did not identify (1) any document or user activity relevant to the will; (2) discussions regarding the creation, signing, or modifying of any wills; or (3) discussions with estate lawyers. This further limited the court’s ability to find that Hill himself had typed the will.

Therefore, and as a last resort, we suggest that individuals who draft their own wills—whether governed by the Indian Act or provincial legislation—consider taking the following prudent steps:

1. draft the will in their own handwriting;
2. sign the will in wet ink and initial each page of the will, if possible;
3. have their signature witnessed (ideally by two persons who are not beneficiaries); and
4. leave evidence that they intended to draft a will—for example, tell friends and family, leave notes about their testamentary intentions, or leave a note indicating the will’s location on a personal computer.

To be clear, we do not recommend that individuals draft their own will. In Bayliss, even if the will had met the formalities, it may have been successfully contested on the basis of uncertainty. However, following these recommendations should provide testators with greater comfort that their testamentary wishes will be heeded after their death.

Lessons for Legal Professionals

As described in Bayliss, Hill’s estate comprised holdings estimated at more than $83 million. They included an interest in Grand River Enterprises, valued at approximately $38 million, and a further $45 million of real and personal property, including boats and vehicles worth several million dollars, and bank and investment accounts located across Canada and in the United States and the Bahamas. Hill also owned real property on the Grand River Reserve, although the record does not provide a valuation for those assets.

Considerations for Drafting Lawyers

Below is a list of considerations for any drafting lawyer who may be retained by a client in a situation similar to that of the testator in Bayliss.

(1) Determine What Laws Apply to the Estate-Planning Process

In addition to the Indian Act and Indian Estates Regulations, provincial and territorial laws that do not conflict with the Indian Act may apply through section 88 of the Indian Act, or where the minister asks the court for direction. As in Bayliss, the laws of other jurisdictions such as Florida and the Bahamas may also apply.

Legal professionals must also ascertain whether any customary laws exist that impact any laws that are relevant to the client with status who ordinarily lives on reserve.^[17] These customary laws may be found in self-government agreements or in forms otherwise adopted by the band of which the client is a member.^[18]

(2) Planning Must Anticipate Ministerial Oversight

On-reserve land interests are uniquely restricted: for example, alienation is controlled to protect the reserve land base, and testamentary gifts of reserve land must comply with the Indian Act.^[19] “Generally speaking, reserve land is land set aside by the federal Crown for the use and benefit of a particular First Nation. 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.”^[20] A certificate of possession may be bequeathed to a First Nation band member, but in general this transfer must be approved by the minister.^[21] All bequests of reserve land interests are subject to ministerial oversight, and dispositions that are inconsistent with band interests under the Indian Act may be refused or made to comply with conditions.

(3) Individuals with Status May Have Unique Tax Considerations

For status Indians, the tax treatment of income and property “situated on a reserve” can differ materially from off-reserve taxation. For larger estates, planning should analyze the connecting factors for business income and employment income, the location of accounts and contracts, and the situs of property to determine eligibility for tax exemptions under the Indian Act and the relevant administrative guidance. Business succession should be strongly considered, as should Canadian capital gains tax, which may apply to off-reserve assets at death and must be contemplated under the estate plan.

(4) The Testator May Benefit from Drafting More Than One Will

Multijurisdictional real estate and assets that are owned off reserve raise separate probate, tax, and succession questions. In Bayliss, Hill may have benefited from drafting up to four wills because of his multijurisdictional asset ownership:

1. In Ontario (and British Columbia), the use of multiple wills should be considered to streamline probate for private company interests and to avoid unnecessary estate administration tax on corporate assets.
2. In Florida, local probate is generally required for Florida-situs real property. There is a potential for US estate tax exposure tied to US-situs assets. Estate planners should plan for enough liquidity to cover any cross-border estate tax and local administration costs.
3. While there is no inheritance tax in the Bahamas, Bahamian property generally requires local probate to transfer assets.^[22] A lawyer would need to ensure that Hill had Bahamian-compliant testamentary instruments to facilitate transfer. Inter vivos transfers could be contemplated as well.
4. Finally, cross-border titling of movable property such as yachts and high-value vehicles should be reviewed to confirm situs, registration, and governing law for transfer at death.

(5) Family Law Considerations Relevant for the Testator

It is important for planning to consider the testator’s family structure. In Bayliss, for example, Hill had nine children, including minors, and multiple co-parents. Generally, planning for a similar family and asset profile should include guardianship directions, staggered distributions, protected trusts for minors, asset-protection features, and clear guidance on trustee succession and powers. Hill chose to benefit each of his children differently under his will, the greatest difference being the bequest to his oldest son and nothing to one of his daughters.

Under section 46(1) of the Indian Act, the minister may declare a will void, in whole or in part, on broad grounds, including hardship to dependants. Under provincial regimes, dependants’ relief statutes can alter distributions. It is unclear what value the Indian Act ascribes to testamentary freedom. For example, legislation in Ontario values testamentary freedom more highly than legislation in British Columbia, which permits beneficiaries to make a will variation claim regardless of whether they are a dependant. The structuring of distributions should anticipate ministerial oversight and, where applicable, dependants’ relief provisions under provincial legislation. The testator should provide reasoned, well-documented reasons for unequal or conditional gifts.

(6) The Will Must Be Executed Properly to Mitigate Risk

Finally, it is of paramount importance that the testator executes the will properly. The lawyer must prioritize robust execution practices and ensure that the will meets the requirements under the Indian Act, provincial legislation, and, if applicable, legislation in other jurisdictions.

What Can Lawyers Do Differently?

Competently delivering quality service to Indigenous clients in a culturally sensitive way is essential for lawyers to meet their professional responsibilities. Many Indigenous people have a distrust of Canada’s legal system because of the damage it caused in the past.^[23] It is thus of utmost importance that lawyers understand their client’s needs and communicate effectively with them to build trust.

In Bayliss, in recognition of the fact that Hill did not want his lawyer involved in the drafting of the will, the lawyer could have sought the involvement of more appropriate counsel—perhaps an Indigenous lawyer, or someone who had more experience with drafting, or who had a personality that aligned better with Hill. The case did mention that the lawyer wanted to assemble a team for Hill’s estate planning, but perhaps he could have brought someone along to meet Hill, or given Hill specific referrals to trustworthy legal professionals.

The lawyer also could have advised Hill of the consequences of not preparing a valid will, and warned how, without one, Hill’s property may be distributed contrary to his wishes—and with the involvement and expense of lawyers.

Having a lawyer help to prepare a will is the best way to ensure the will’s validity, and to ensure that property is actually distributed in accordance with the testator’s wishes. However, because there are many reasons an individual may not be able or willing to access a lawyer for estate planning, there is a role for law societies and community legal centres to play here. They can provide accessible legal information about estate planning, and enable potential testators to make an informed decision about when to access legal help, or even prepare their own will.^[24]

Concluding Remarks

It is possible that Hill did draft the will at issue in Bayliss, which means that the outcome of the case—that his assets were distributed according to the laws of intestacy—did not align with his intentions.

As a last and important point, Call to Action #27 of the Truth and Reconciliation Commission’s report specifically calls on the law societies of Canada to ensure that lawyers receive appropriate cultural competency training, including skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.^[25] In working to meet its obligations under Call to Action #27, the Law Society of Ontario has made a number of resources available to lawyers to improve their cultural competency in helping Indigenous clients.^[26] We encourage all readers to engage with this resource and others—including, notably, Communicating Effectively with Indigenous Clients, a guide that focuses on effective communication from a linguistic point of view.^[27]