Property in Wills and Estate (16:IX) - Revision history

LSLAP at 19:32, 13 October 2025

2025-10-13T19:32:03Z

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LSLAP: /* D. Key Concepts */

2025-10-01T00:33:00Z

D. Key Concepts

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	The definition of “Indian” in the Act means “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.” The ''Indian Act'' states that “[t]he Minister may accept as a will any written instrument signed by an Indian in which they indicate their wishes or intention with respect to the disposition of their property upon [their] death.” “Instrument” in this context does not mean anything special: letters, wills, and notes are all “instruments.”		The definition of “Indian” in the Act means “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.” The ''Indian Act'' states that “[t]he Minister may accept as a will any written instrument signed by an Indian in which they indicate their wishes or intention with respect to the disposition of their property upon [their] death.” “Instrument” in this context does not mean anything special: letters, wills, and notes are all “instruments.”

	Finally, if a registered First Nations person “living on reserve dies intestate, or their will is not clear or not valid, the Department of Indian Affairs will apply to the estate the rules set out in the ''Indian Act'' and [https://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._954/page-1.html the ''Indian Estates Regulations'', CRC 1978, c 954].”		Finally, if a registered First Nations person “living on reserve dies intestate, or their will is not clear or not valid, the Department of Indian Affairs will apply to the estate the rules set out in the ''Indian Act'' and ''[https://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._954/page-1.html the Indian Estates Regulations]'', CRC 1978, c 954.”

	For further information on wills for First Nations persons, consult Chapter 29 of the 2020 CLEBC ''Wills and Personal Planning Precedents''.		For further information on wills for First Nations persons, consult Chapter 29 of the 2020 CLEBC ''Wills and Personal Planning Precedents''.

LSLAP at 22:33, 20 August 2024

2024-08-20T22:33:36Z

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	:::https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money		:::https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money


			== C. First Nations and Wills Notes on LSLAP File Administration ==

			An LSLAP clinician must decide whether or not the client comes within the scope of [https://laws-lois.justice.gc.ca/eng/acts/i-5/ the ''Indian Act'', RSC 1985, c I-5]. Section 45(3) is the relevant section of the Act; it provides that a will executed by an Indian, as defined by the Act, is of no legal force and effect as a disposition of property until
			* the Minister has approved the will or
			* a court has granted probate pursuant to the ''Indian Act''.

			The clinician must also be aware of the on-reserve/off-reserve Indian dichotomy. A First Nations person living off-reserve is essentially under the same rules and constraints as any other Testator who isn’t classified as an “on-reserve Indian.”


			== D. Key Concepts ==

			The definition of “Indian” in the Act means “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.” The ''Indian Act'' states that “[t]he Minister may accept as a will any written instrument signed by an Indian in which they indicate their wishes or intention with respect to the disposition of their property upon [their] death.” “Instrument” in this context does not mean anything special: letters, wills, and notes are all “instruments.”

			Finally, if a registered First Nations person “living on reserve dies intestate, or their will is not clear or not valid, the Department of Indian Affairs will apply to the estate the rules set out in the ''Indian Act'' and [https://laws-lois.justice.gc.ca/eng/regulations/C.R.C.,_c._954/page-1.html the ''Indian Estates Regulations'', CRC 1978, c 954].”

			For further information on wills for First Nations persons, consult Chapter 29 of the 2020 CLEBC ''Wills and Personal Planning Precedents''.

			::'''NOTE:''' It is important to determine whether there exist any applicable treaties that may affect a First Nations client’s will. For example, the Nisga’a Treaty provides that Nisga’a citizen’s cultural property devolves according to Nisga’a law.


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LSLAP at 22:25, 20 August 2024

2024-08-20T22:25:43Z

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	== A. Joint Tenancy and Tenancy in Common ==		== A. Joint Tenancy and Tenancy in Common ==

	Where property is owned by more than one individual, it may be held in “joint tenancy” or “tenancy in ~~common”~~. The main difference between a joint tenancy and a tenancy in common is that, in the case of a true joint tenancy, each joint tenant receives the right of survivorship. The result is that, upon the death of one joint tenant, the other becomes entitled to the whole of the property. The testator’s interest in the property does not form a part of their estate and does not pass under the will. Instead, it passes “outside the will” to the surviving joint tenant(s).		Where property is owned by more than one individual, it may be held in “joint tenancy” or “tenancy in common.” The main difference between a joint tenancy and a tenancy in common is that, in the case of a true joint tenancy, each joint tenant receives the right of survivorship. The result is that, upon the death of one joint tenant, the other becomes entitled to the whole of the property. The testator’s interest in the property does not form a part of their estate and does not pass under the will. Instead, it passes “outside the will” to the surviving joint tenant(s).

	The right of survivorship has its benefits as well as problems. Because the testator’s interest in the property held under joint tenancy does not become a part of the estate, probate fees related to the property can be avoided as the interest passes outside the will. Placing assets in joint tenancy may also avoid costs and delays associated with obtaining probate. Furthermore, a beneficiary of a will who is not satisfied with their gift under the will cannot make a claim under ~~the~~ ''~~Wills Variation Act~~'' to obtain a greater share in the estate for property that passes outside of the estate. One drawback of placing assets in joint tenancy is that the surviving tenant owns the asset and does not need to respect the will-maker’s wishes on how they may have wanted their asset dealt with after their death.		The right of survivorship has its benefits as well as problems. Because the testator’s interest in the property held under joint tenancy does not become a part of the estate, probate fees related to the property can be avoided as the interest passes outside the will. Placing assets in joint tenancy may also avoid costs and delays associated with obtaining probate. Furthermore, a beneficiary of a will who is not satisfied with their gift under the will cannot make a claim under ''WESA'' to obtain a greater share in the estate for property that passes outside of the estate. One drawback of placing assets in joint tenancy is that the surviving tenant owns the asset and does not need to respect the will-maker’s wishes on how they may have wanted their asset dealt with after their death.

			In contrast, where owners hold an interest in the property as tenants in common, each has a separate undivided share. Upon death, each owner’s individual share forms part of their estate.

	~~In contrast, where owners hold an interest in the property as tenants in common, each has a separate undivided share. Upon death, each owner’s individual share forms part of their estate.~~

	== B. Joint Bank Accounts ==		== B. Joint Bank Accounts ==

	When a joint bank account is created, many assume that when one owner dies, the survivor is automatically entitled the remaining balance in the account. However, this is not always the case. In ''[https://www.canlii.org/en/ca/scc/doc/2007/2007scc17/2007scc17.html?autocompleteStr=Pecore%20v%20Pecore%2C%202007%20SCC%2017&autocompletePos=1 Pecore v Pecore]'', 2007 SCC 17, the Supreme Court of Canada held that when a parent creates a joint bank account with an adult child, it is presumed that this arrangement is made out of convenience, and there was not an intent by the parent for the balance of the account to pass to their adult child by way of survivorship. Unless the intention for the account to pass to the adult child through survivorship is clear when the bank account is set up, courts will presume that the balance in the joint account is to be held by the child in a resulting trust for their parent’s estate. It is then up to the child to prove that their parent intended to gift the bank account to them. If the child fails to establish such an intention, the balance of the account forms a part of their parent’s estate and is distributed according to their will or the law of intestacy.		When a joint bank account is created, many assume that when one owner dies, the survivor is automatically entitled to the remaining balance in the account. However, this is not always the case.

			In [https://www.canlii.org/en/ca/scc/doc/2007/2007scc17/2007scc17.html?autocompleteStr=Pecore%20v%20Pecore%2C%202007%20SCC%2017&autocompletePos=1 ''Pecore v Pecore''], 2007 SCC 17, the Supreme Court of Canada held that when a parent creates a joint bank account with an adult child, it is presumed that this arrangement is made out of convenience, and there was not an intent by the parent for the balance of the account to pass to their adult child by way of survivorship. Unless the intention for the account to pass to the adult child through survivorship is clear when the bank account is set up, courts will presume that the balance in the joint account is to be held by the child in a resulting trust for their parent’s estate. It is then up to the child to prove that their parent intended to gift the bank account to them. If the child fails to establish such an intention, the balance of the account forms a part of their parent’s estate and is distributed according to their will or the law of intestacy.

			The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, please see:

			:::https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money

	The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, see https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money


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Clicklaw Editor at 21:22, 29 August 2023

2023-08-29T21:22:21Z

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LSLAP at 00:15, 25 August 2023

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Clicklaw Editor: Clicklaw Editor moved page Property in Wills and Estate (16:VIII) to Property in Wills and Estate (16:IX)

2023-07-28T20:58:39Z

Clicklaw Editor moved page Property in Wills and Estate (16:VIII) to Property in Wills and Estate (16:IX)

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Clicklaw Editor at 21:28, 11 October 2022

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	The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, see https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money		The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, see https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money


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LSLAP at 20:59, 10 August 2021

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	The right of survivorship has its benefits as well as problems. Because the testator’s interest in the property held under joint tenancy does not become a part of the estate, probate fees related to the property can be avoided as the interest passes outside the will. Placing assets in joint tenancy may also avoid costs and delays associated with obtaining probate. Furthermore, a beneficiary of a will who is not satisfied with their gift under the will cannot make a claim under the ''Wills Variation Act'' to obtain a greater share in the estate for property that passes outside of the estate. One drawback of placing assets in joint tenancy is that the surviving tenant owns the asset and does not need to respect the will-maker’s wishes on how they may have wanted their asset dealt with after their death.		The right of survivorship has its benefits as well as problems. Because the testator’s interest in the property held under joint tenancy does not become a part of the estate, probate fees related to the property can be avoided as the interest passes outside the will. Placing assets in joint tenancy may also avoid costs and delays associated with obtaining probate. Furthermore, a beneficiary of a will who is not satisfied with their gift under the will cannot make a claim under the ''Wills Variation Act'' to obtain a greater share in the estate for property that passes outside of the estate. One drawback of placing assets in joint tenancy is that the surviving tenant owns the asset and does not need to respect the will-maker’s wishes on how they may have wanted their asset dealt with after their death.

	In contrast, where owners hold an interest in the property as tenants in common, each has a separate undivided share. Upon death, each owner’s individual share forms part of their estate.		In contrast, where owners hold an interest in the property as tenants in common, each has a separate undivided share. Upon death, each owner’s individual share forms part of their estate.

	== B. Joint Bank Accounts ==		== B. Joint Bank Accounts ==

	When a joint bank account is created, many assume that when one owner dies, the survivor is automatically entitled the remaining balance in the account. However, this is not always the case. In ''Pecore v Pecore'', 2007 SCC 17, the Supreme Court of Canada held that when a parent creates a joint bank account with an adult child, it is presumed that this arrangement is made out of convenience, and there was not an intent by the parent for the balance of the account to pass to their adult child by way of survivorship. Unless the intention for the account to pass to the adult child through survivorship is clear when the bank account is set up, courts will presume that the balance in the joint account is to be held by the child in a resulting trust for their parent’s estate. It is then up to the child to prove that their parent intended to gift the bank account to them. If the child fails to establish such an intention, the balance of the account forms a part of their parent’s estate and is distributed according to their will or the law of intestacy.		When a joint bank account is created, many assume that when one owner dies, the survivor is automatically entitled the remaining balance in the account. However, this is not always the case. In ''[https://www.canlii.org/en/ca/scc/doc/2007/2007scc17/2007scc17.html?autocompleteStr=Pecore%20v%20Pecore%2C%202007%20SCC%2017&autocompletePos=1 Pecore v Pecore]'', 2007 SCC 17, the Supreme Court of Canada held that when a parent creates a joint bank account with an adult child, it is presumed that this arrangement is made out of convenience, and there was not an intent by the parent for the balance of the account to pass to their adult child by way of survivorship. Unless the intention for the account to pass to the adult child through survivorship is clear when the bank account is set up, courts will presume that the balance in the joint account is to be held by the child in a resulting trust for their parent’s estate. It is then up to the child to prove that their parent intended to gift the bank account to them. If the child fails to establish such an intention, the balance of the account forms a part of their parent’s estate and is distributed according to their will or the law of intestacy.

	The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, see https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money		The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, see https://www.lerners.ca/lernx/joint-accounts-is-the-surviving-owner-really-entitled-to-the-money

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Desy Wahyuni: Desy Wahyuni moved page Property in Wills and Estate Planning (16:VIII) to Property in Wills and Estate (16:VIII)

2021-08-04T20:37:43Z

Desy Wahyuni moved page Property in Wills and Estate Planning (16:VIII) to Property in Wills and Estate (16:VIII)

← Older revision	Revision as of 20:37, 4 August 2021
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