Estates and the Indian Act (Canada)

For a lawyer dealing with the estate of a person registered under the Indian Act (Canada), the law regarding the jurisdiction and role of the courts concerning wills, intestacy and the administration of estates differs from Provincial legislation and the common-law, and sometimes the jurisdictional lines are not entirely clear.

Sections 42 through 46 of the Indian Act deal with descent of property and wills of persons registered under that Act. At first instance, jurisdiction and authority is given to the federal government, as opposed to the courts. Section 42 of the Act states that “all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council”. While that jurisdiction can be conferred on a Court, such requires the consent of the Minister.

While the Act states specifically that it does not prevent a registered person from devising or bequeathing his or her property by will, s. 45 does state that no will executed by a registered person is of any legal force unless approved by the Minister or probated by a Court (where the Minister has consented to the Court’s jurisdiction). Section 46 of the Act also bestows on the Minister the jurisdiction to declare a will void for many of the same reasons as a Court at common law might do – duress or undue influence, lack of testamentary capacity, considerations of dependants, vagueness or uncertainty.

Section 43 of the Act also gives the Minister the authority to appoint and remove executors of wills and administrators of estates and to provide orders and directions to an executor regarding testamentary matters. This section was recently the subject of litigation because of s. 4(3) of the Act, which states that none of the sections described above apply to any registered person “who does not ordinarily reside on a reserve or on lands belonging to her Majesty in right of Canada or a province”. In Re Dickson Estate, the deceased died intestate. She was registered under the Act and had lived on reserve until 2009 when she was moved to a long-term care facility off reserve. She died intestate about 21 months later. Without first obtaining the consent of the Minister, the deceased’s sister applied to a Court for letters of administration, which were granted. The federal government sought to set aside the letters of administration claiming that the Court did not have jurisdiction to grant same without the consent of the Minister. The issue was whether the federal government did or did not have jurisdiction. That question relied on a determination of whether the deceased was “ordinarily resident” on a reserve.

The Court hearing the matter granted the federal government’s application finding that, despite the deceased having lived for almost two years off reserve, she nonetheless met the definition of ordinarily resident on reserve. In reviewing the law, the Court found that “ordinarily resident” means “residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence”. The determination must be made by reference to all facts of the case. Other Courts had found that “residence in a medical facility is not a customary mode of life but rather is a special residence”. Applying this rationale, the Court found that the deceased’s residence in a long-term care facility constituted special circumstances and did not affect her ordinary residence on reserve. Therefore, the Indian Act applied and the federal government retained jurisdiction over the appointment of an administrator.

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