Estate Planning for First Nations Peoples on Reserve – Statutory Considerations

Applicability

First Nation peoples with status and who ordinarily live on reserve

First Nation peoples living off reserve

Formal requirements of wills

The Minister of Indigenous Services may accept as a will any written instrument signed by an Indian in which s/he indicates her/his wishes or intention with respect to the disposition of her/his property on her/his death 
s. 45(2)

A will must be:

1. in writing; s. 3
2. signed by the testator or some other person in their presence and by their direction; s. 4(2)(a)
3. signed by the testator in the presence of two or more attesting witnesses present at the same time; s. 4(2)(b) and
4. signed by two or more of the attesting witnesses in the presence of the testator s. 4(2)(c)

Ministerial powers

• The Minister has many discretionary powers
• No will is of any legal force or effect until the Minister has approved it or a court has granted probate s. 45(3)
• The Minister may declare a will to be void in certain circumstances s. 46(1)

• No requirement that wills be approved by a Minister

Land distribution

• Reserve land is held by federal Crown for benefit of the First Nation
• Indigenous person has only a possessory interest evidenced by way of possessory certificate (Evidence of Title) s. 20(2)
• Possessory certificate may be bequeathed only to a member of the band
• Transfer of reserve land must be approved by the Minister s. 24

• Land held in fee simple by deceased as sole owner, joint tenants, or tenants in common
• No obligation on the owner to deal with their property upon death in a specific way

Dependants’ relief

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”

s. 46(1)(c)

Where a person has not made adequate provision for his/her dependants, the court may make an order for support it considers adequate

s. 58(1)

Spousal relief

• Recognizes common-law partners and spouses as beneficiaries à “survivors”

s. 2(1)

• The matrimonial home can only be passed on to survivor if survivor is Indigenous and has status
• Some remedies (equalization payment; exclusive possession) are available but they are rarely successful and can be difficult to enforce

• Common-law partners are not included in the definition of spouse and as such have no automatic property rights s. 1(1)
• Common-law partners may seek alternative relief through a dependant support claim

Intestacy

Spouse and children

First $75K + remainder of estate to “survivor” (which is a spouse or common-law partner)
s. 48(1)  and s. 48(2)(a)

First $350K + remainder of estate to spouse

s. 44

First $75K + ½ remainder of estate to survivor; ½ remainder of estate to child

s. 48(2)(b)

First $350K + ½ remainder of estate to spouse; ½ remainder of estate to child

s. 46(1)

First $75K + 1/3 remainder of estate to survivor; 2/3 remainder of estate divided among children

s. 48(2)(c)

First $350K + 1/3 remainder of estate to spouse; 2/3 remainder of estate divided among children

s. 46(2)

If a child dies leaving issue alive on the person’s death

A deceased child’s share is divided among his or her surviving issue then alive

s. 48(2)

Same

s. 46(3)

No spouse or issue

The next heirs in line are:

1. parents; s. 48(5),
2. 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”; s. 48(6) or
3. next of kin s. 48(7)

The next heirs in line are:

1. parents; s. 47(3)
2. 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”; s. 47(4)
3. nephews and nieces; s. 47(5)
4. next of kin of equal degree of consanguinity; s. 47(6) or
5. the Crown s. 47(7)