First Nations and Wills (16:IX)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 10, 2021.|
A student must decide whether or not the client comes within the scope of 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 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 student must 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”.
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 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 Nation 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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