Note: The word “Indian” is used in this document only to reference the language used in the Indian Act and it is acknowledged that this is not the appropriate term to be used. 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.
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.
“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 certain requirements required by provincial legislation, although it is a good idea to do so. 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. 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.
There are also important differences in how assets, such as land can be distributed. First Nations People can only distribute land located on reserve 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).
What happens after death?
Upon the death of a First Nations Person ordinarily living on reserve or Crown Land, the procedures for administering an estate are governed by the Indian Act and the Indian Estates Regulation.
Some preliminary steps include:
- Obtaining a Death Certificate;
- Locating the Will;
- Notifying Indigenous Services Canada
- Once the original Will has been located and the Death Certificate has been received, Indigenous Services Canada must be told of the death.
- Indigenous Services Canada first confirms with the deceased’s First Nation that the deceased was both a registered “Indian” and “ordinarily resident” on reserve at the time of their death
- Obtaining Approval from Indigenous Services Canada
- A will is not valid until it has been approved by the Minister of Indigenous Services.
- The Will has to be approved by Indigenous Services Canada after the person is deceased and the Will cannot be acted on until Indigenous Services Canada has approved it.
Under section 46(2) of the Indian Act, if the Will is declared by the Minister to be void, the person who executed the will is deemed to have died intestate. The intestate distribution scheme is set out in the Indian Act.
It is important for us to know when preparing your estate planning document if you are a First Nation person who is “ordinarily resident” on reserve, as this will affect the preparation of your Last Will and Testament and estate planning documents.