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Part One - Governance Toolkit (PDF)

 

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3.33  Wills and Estates

 

3.33.1. Background

This subject matter is linked to land management, citizenship, matrimonial property, solemnization of marriages and financial management.  A will is simply the document used by persons to set out their wishes for disposition of their real (interests in land) and personal property (furniture, vehicles, money, etc.) and other matters (i.e., burial requests, executor etc.) following their death.  Succession of property is one of the most important components of a will and relates to the transfer of the property of the deceased to others.  In Canada, the provinces have jurisdiction over wills and estates and have passed legislation governing these matters.  The exception to this is for Indians, for whom jurisdiction with respect to their property is federal and falls under the authority of the Minister of Indian Affairs and is governed under the Indian Act.  The Indian Act and regulations set out rules for the wills and estates of Indians.

Canada will recognize a First Nation’s jurisdiction over wills and estates in comprehensive governance arrangements, but only with respect to the property of its citizens located on reserve (or on settlement lands in the case of treaty).  Therefore, consideration must be given to how the exercise of jurisdiction by our Nations would be coordinated with the jurisdiction of the province over the disposition of assets held by members off reserves (or settlement lands).  If your Nation is in governance negotiations, you will need to consider the extent your Nation wishes to make laws in this area and to what end within the parameters of the jurisdiction available to your Nation.  Governance over wills and estates and “succession” matters are complicated for our people, given the relationship between provincial and federal laws and the impact of section 91(24) of the Constitution Act, 1867 and the Indian Act.

Rules of succession in relation to interests in reserve lands must be compatible with the land management and administration frameworks in place.  Where our Nations have established Land Codes or assumed jurisdiction over lands in comprehensive governance arrangements and have created private interests in land (similar to a Certificate of Possession under the Indian Act or fee simple interests), such instruments typically address the transfer of these interests by a will or rules of succession in the absence of a will to another citizen of the First Nation or whoever else is entitled to hold that interest under the First Nation’s law, including rules regarding the process of registration.  It should be noted that while a Land Code may address succession and registration, this in itself is not considered an exercise of jurisdiction over wills and estates or a drawing down of that power.

In existing treaty arrangements in BC, First Nations have chosen not to exercise jurisdiction over wills and estates and to defer to the provincial system once the Indian Act no longer applies.  Because succession of personal property of “non-Indians” or non-citizens on First Nation land and real property of citizens off reserve would not typically fall within the authority of First Nation governments, either under treaty or other comprehensive governance arrangements, the effective implementation of this jurisdiction would be complicated for citizens.  Where administrative powers are exercised by the “band” or jurisdiction is taken over, our Nations will need to coordinate their administration and rules with the provincial court system regarding property over which the Nation does not have jurisdiction.  Because of this complexity, and the significant number of other issues facing our Nations as they move beyond the Indian Act, it is not surprising that no First Nations with comprehensive governance arrangements have taken over full jurisdiction for wills and estates on their lands and have forgone this jurisdiction in their agreements.

While no First Nation in BC has exercised direct law-making authority over wills and estates, some First Nations have reserved the right to make laws in relation to the transmission of cultural property or hereditary property to ensure that items or property central to the culture of the Nation are not lost.  In these cases, the rights of the collective to intervene only extend to individuals who have left no will (they died “intestate”) and their intentions with respect to the cultural property are not known.

Finally, as an alternative to exercising jurisdiction, a Nation could seek delegated authority to administer the current regime under the Indian Act, although there are no examples of this approach, which would have to be negotiated with Canada.  There is possible authority under section 43 of the Indian Act, but attempts to use s. 43 (e) by a First Nation are currently being refused by INAC.

3.33.2. Indian Act Governance

There is no jurisdiction recognized for First Nations over wills and estates under the Indian Act. Under section 42 of the Act, the Minister has full jurisdiction and exclusive authority with respect to the property of deceased Indians.  Wills of Indians are processed by the Minister and INAC officials in accordance with the Indian Act and the Indian Estates Regulations made under the Act.  The regulations made under section 42(2) of the Act deal with lands in the possession of a deceased Indian at the time of death. 

There is nothing under the Indian Act to prevent an Indian from making a will.  However, no such will has any legal force or effect with respect to the disposition of property until the Minister has approved the will or a court has granted probate under the Act.  The Minister may delegate jurisdiction to a probate court of the province under s. 44.   However, the court cannot enforce any authority over reserve lands without the consent of the Minister.  

Under section 46(1), the Minister also has the power to declare a will void under certain circumstances, which entail quite broad powers that many of our citizens feel inappropriate and should not under any circumstances be exercised by a Minister of the Crown.  A will of an Indian under the Indian Act system cannot dispose of any land contrary to the interests of the “band” or the Indian Act.  Certificates of Possession, where established and forming part of an estate, can be passed on to other citizens who are heirs, either in accordance with a will or subject to the Indian Act rules in section 48.

Where a person not entitled to reside on the reserve (usually a non-citizen) has a right to a Certificate of Possession or Certificate of Occupancy by a will or through descent, the right is offered for sale to other citizens and the non-citizen receives the proceeds of the sale (see section 50 of the Indian Act). Where there is no buyer within 6 months, the interest reverts to the Nation and the non-citizen inheritor receives compensation as the Minister determines (section 50 (3)).

The Indian Act also provides very prescriptive rules regarding what happens to the distribution of property if an Indian dies without a will.  Again, there are issues about whether these are the appropriate rules and whether a Minister of the Crown should be making the determination. 

There are, not surprisingly, many disputes in relationship to the wills and estates of deceased Indians relating to reserve lands, and these can take years to resolve given the nature of the relationship with Canada and the involvement of the Minister.  For estates left unsettled for unacceptably long periods, the courts generally have little way to enforce the will when it is contrary to the provisions of the Indian Act.  This reality has as much to do with the administrative capacity of the department and the often poor manner in which interests in reserve land have been created and recorded historically as it does with the restrictions under the Indian Act on transferring property.

Even where a Nation does not exercise jurisdiction over wills and estates, clearing up the land tenure systems on reserve can go a long way to resolving potential disputes over succession and estate planning.  Also, encouraging all our citizens to make wills removes the involvement of the Minister, at least to some degree, in determining the descent of property interests on the reserve.

3.33.3. Sectoral Governance Initiatives

There are no sectoral governance initiatives with respect to jurisdiction over wills and estates.  During the 1980s, as part of the INAC’s Lands, Revenues and Trusts initiative, there was talk of a sectoral legislative initiative addressing wills and estates.  This did not materialize as there was little or no First Nation support.

3.33.4. Comprehensive Governance Arrangements

The Westbank First Nation Self-Government Agreement and the Sechelt Act both provide jurisdiction over succession of property of members, where the property is located on reserve.  Westbank has not exercised jurisdiction in this area.  The Westbank Constitution Land Rules provide that Indian Act rules continue to apply.

In the Sechelt example, jurisdiction is recognized in the Act (section 14 (1) (q) and Sechelt Constitution (section 14)).  Sechelt has passed the Testate Succession Law (1998-02 September 16, 1988), which provides that unless the executor/executrix of a citizen’s estate elects within a specified time to have the estate managed under the Indian Act, the estate involving a citizen’s interest in Sechelt lands and the personal property of a citizen ordinarily resident on Sechelt Lands will fall under the jurisdiction of the Supreme Court of BC and be addressed under provincial laws dealing with estates listed in the attached schedule.

In the treaty agreements, the Indian Act applies to all property and estates of an Indian who dies before the effective date of the treaty.  After the effective date, provincial law will apply to wills and estates.  Under the treaty arrangements, jurisdiction over wills and estates, subject to provisions dealing with cultural property, comes under provincial authority.  Canada undertakes to notify all “Indians among the Members” of treaty First Nations that their wills are not valid after the effective date and should be reviewed to ensure validity under provincial law.  The Tsawwassen and Nisga’a agreements have specific provisions that First Nation law will apply to the devolution of cultural property of a First Nation citizen where they die intestate.

3.33.4.1. – Comprehensive Governance Arrangement - Comparative Charts

 

  General Jurisdiction:

Sechelt

Sechelt Act s.14(1)(q) provides the band council with the authority to make laws of succession of real property of band members on Sechelt Lands and personal property of band members ordinarily resident on Sechelt lands. (s. 14(1)(q))

The Sechelt Constitution requires the incorporation by reference of such laws of the province as are necessary.

Sechelt has enacted a Testate Succession Law giving executors of members’ estate for interests in Sechelt Lands or for personal property of members resident on Sechelt lands the option of using the Indian Act rules. (Part III, Division (I),s14 s.14(d) (1) to (6))

Westbank

Westbank has jurisdiction over the wills and estates of Westbank members.  Until such time as Westbank enacts a law, the Indian Act will apply. (Part VIII, ss 78-80)

Nisga’a

Nisga’a has jurisdiction over the devolution of the cultural property of a deceased person. (Ch. 11, s.116)

Tsawwassen

Tsawwassen has jurisdiction over the devolution of cultural property of a Tsawwassen citizen who dies without a valid will. (Ch. 14, s. 2(f))

Maa-nulth
No provision.

 

  Conflict of Laws:

Sechelt

Westbank

Westbank law prevails. (Part VIII, s. 81)

Nisga’a

Nisga’a law prevails. (Ch. 11, s. 116)

Tsawwassen

Tsawwassen law prevails. (Ch. 14, s. 3)

Maa-nulth

 

3.33.5. BC First Nations’ Laws/By-laws in Force and Other Activities

Comprehensive Governance Arrangements

 

First Nation Law Description

Sechelt Indian Band

1988-02

Testate Succession

Sechelt Indian Band

1993-01

Testate Succession Amendment

Sechelt Indian Band

1999-01

Intestate Succession

 

3.33.6. Resources

 

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