Death and Taxes (Legal Information for Indigenous People)

Wills

On Reserve: to be valid, a will under the Indian Act must:

1. Be in writing (*audio/video wills/oral instructions are not accepted)
2. Be signed by the will-maker
3. Give away something the will-maker owns
4. Be intended to take effect upon death
5. Have 2 adult witnesses (not beneficiaries or their spouses)
6. Be dated

The person writing the will must be:

• A “Status Indian” under the Indian Act
• considered “ordinarily resident on-reserve”
• 16 and older
• Free from pressure or influence

In addition to these requirements, it is important to include the following in your will:

• Name executor and alternate to manage your estate
• Who you want to care for your children
• Funeral directions
• Make gifts of specific assets (e.g., your house, boat, car, jewelry, art, television etc.)
• The residue/remainder (what is left over after payments of debts and gifts of your estate)

For step by step directions use the template in “Writing Your Own Will - A Guide for First Nations People Living on Reserve (Revised 2019).”

https://afoabc.org/wp-content/uploads/2021/03/AFOA-BC-Wills- and-Estates-Booklet-2019.pdf. For questions contact Indigenous Services Canada, Estates Unit, 1.888.917.9977 or BCEstates@sac-isc.gc.ca

Indigenous people on reserve can leave their home to people who are members of their band or entitled to be, as long as the house is located on a Certificate of Possession lot (“CP”). A CMHC house cannot be given away in a will. Check with your Band’s housing department to find out what happens to a CMHC house or Custom allotment in the event you pass away.

Off reserve the law for writing wills is the Provincial legislation Wills and Estates Succession Act (WESA). There is an online template at MyLawBC that can help you make a simple will that says what you want to happen after you die: www.mylawbc.com/pathways/make-a-will.

For Legal Advice about Wills, call Access Pro Bono Justice to schedule a free 1/2 hour phone appointment with a lawyer 1-877-762-6664.

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

The person responsible for carrying out the instructions in a will and wrapping up a deceased person's estate and debts. The lovely feminine form of the word is "executrix," though the masculine form is commonly applied to executrices and executors both. See "estate," "testator," and "will."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

An act; a statute; a written law made by a government. See "regulations."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."