Wills & Estates for First Nations People – Part 1
September 20th, 2021
Part 1: Wills
Note: The word “Indian” is used in this document only to reference the language used in the Indian Act. The term Indigenous refers to individuals who self-identify as Métis, Inuit or First Nations (Status or non-Status). The proper term to describe someone who has historically been named an “Indian” is First Nations.
This article is Part 1 of 2 in a series entitled “Wills & Estates for First Nations People.” This article, Part 1, covers Wills and Part 2 discusses Estates for First Nations People.
Most people are familiar with the importance of estate planning, and may even be aware that different requirements exist for different jurisdictions. However, many may not realize that the regulations governing Wills and estate are not identical for all individuals who reside in Manitoba.
The wills and estates of First Nations People who are “ordinarily resident” on a reserve or on Crown Land are not governed by The Wills Act and The Intestate Succession Act, the legislation which applies to most Manitobans. Instead, they are governed by the Indian Act and the Indian Estates Regulation.
Who falls under this category?
Under the Indian Act, First Nations does not include Métis and Inuit people.[1] At the Department of Indigenous Services, an “Indian Register” is maintained which records the name of every person who is entitled to be registered as an “Indian.”
“Ordinarily resident” on a reserve means that an eligible First Nations person usually lives on a reserve and does not maintain a primary residence off a reserve. They may, however, temporarily live off a reserve for education purposes or to obtain care or services not available on a reserve, such as living in a long-term care home.
Making a Will
When drafting a will, there are differences in the procedural requirements. A First Nations person who ordinarily lives on a reserve or Crown Lands does not need to follow requirements required by provincial legislation, such as having two witnesses, and signing the will at the end of the document.[2] Nevertheless, it is a good idea to do so, so the document is clearly recognized as a will after death. The will must be a written document signed by the will-maker that indicates their wishes or intention with respect to the distribution of their property on their death.[3] These instructions must be clear and easy to understand.
One important difference under the Indian Act is a Will executed by a First Nations person does not have legal force until it is approved by the Minister of Indigenous Services or a court has granted probate under the Indian Act.[4]
Distribution in Will
(A) Giving Land on Reserve
First Nations people can only distribute land in their Will if it is registered in the Indian Land Registry System or under the First Nations Land Management Act (for bands that manage their own land). A Certificate of Possession is a document that shows that a person’s parcel of land on reserve has been surveyed and registered in the Indian Land Registry (“CP land”). CP land can only be given to people who are members of that band, or are entitled to become members and are not already members of another band.
If the will-maker occupies a traditional land-holding on reserve (also known as a custom allotment), that land probably cannot be given in a Will, because the band legally owns the land, not the will-maker. An example of a custom allotment is a house, owned by the will-maker, that is built on band land. It would have to be dealt with through the band. Some First Nations have very clear custom allotment systems in place, with rules that allow a will-maker to decide who in their family will get to live in their house after they die. Other First Nations do not have such clear rules. If the house is built on band land, rather than CP land, the individual should check with the band to find out if they are allowed to decide who will occupy the house after they die.
(i) Non-Band Members
If the will-maker gives land on reserve to a person not entitled to receive it, the Superintendent of Indigenous Services Canada must put the land up for sale (the sale will only be open to band members) and give the money from the sale to the non-band member.
(ii) Family Property on Reserve
Provincial family law does not cover First Nations people living on reserve. Under the federal law, Family Homes on Reserves and Matrimonial Interests or Rights Act, the surviving spouse has an automatic right to live in the family home for 6 months after the death of the other spouse.[5] If there is a Will, the surviving spouse can choose to inherit from the estate. Alternatively, the surviving spouse can apply to court for a division of the value of the on-reserve family home, but not for the value of the land itself.
(B) Social Housing
A band member living in band housing that is rented, may express their wishes about who will be able to stay in that housing after they die. The band does not have to follow these wishes, but they may listen to what has been said in the Will.
(C) If the First Nations person owns land off-reserve
Real property must be transferred according to the laws of the place where the land is located. Therefore, if you own land off-reserve, your executor will need to have your Will approved by the Probate Registry, as well as Indigenous Services Canada.
(D) Obligation to Provide Support
Under paragraph 46(1)(c) of the Indian Act, the Will should provide for people that the individual is responsible for. If a share of the estate is not given to a family member who they supported for many years, the Minister of Indigenous Services may declare the Will void.
(E) Beneficiaries – Custom Adoption
Some First Nations people raise children who are not their own by birth and have not been legally adopted. It is important to state their name, instead of just “my children” in the Will. While Indigenous Services Canada can recognize custom-adopted children, there is a lot of paperwork involved.
This is simply an overview of some important considerations for Wills for First Nations People.
Part 2: Estates will cover some of the procedural requirements upon the death of a First Nations Person and what happens if they do not have a valid Will at the time of their death.
[1] Indian Act, s 4(1)
[2] Indian Estates Regulation, s 15
[3] Indian Act, s 45(1)
[4] Indian Act, s 45(2)
[5] Family Homes on Reserves and Matrimonial Interests or Rights Act ss 6, 14
Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.
