Wills and estates of Natives
Administration and probate
When the estate of a member of the First Nation falls within the jurisdiction of the Indian Act, the procedures for administration and probate are found within ss. 42 to 50 of the Act along with the Indian Estates Regulations. It is essential to note that though the administration of an Indian’s estate falls within the jurisdiction of the Minister of Indian Affairs and Northern Development, the Department considers actual administration by departmental employees as a last resort. The Department’s view is that estate administration is a private family matter and should be done by the family, without assistance from the Department. The Department will intervene only when things are not as they should be.
The Minister’s powers in connection with the administration of estates are not unlimited. These are subject to review by the Federal Court under s. 47 of the Indian Act. The standard of review is that of correctness in approach to and resolution of matters.
Estates of persons not competent to handle their own affairs
Under section 51 of the Indian Act the jurisdiction of the Superior Court of Justice is ousted in relation to the property of an Indian who is mentally incompetent and ordinarily resident on reserve or Crown land, s. 4(3). In view of s. 51, jurisdiction is vested in the Minister of Indian Affairs and Northern Development. According to section 2, “mentally incompetent Indian” is defined as an Indian who, “pursuant to the laws of the province in which he resides, has been found to be mentally defective or incompetent for the purposes of any laws of that province, providing for the administration of estates of mentally defective or incompetent persons”.
With a view to accommodate the provisions of ss. 51 to 52, the definition of “Indian” is extended to include any member of a Band. This is in contrast to the Canadian legal definition of Indian, which otherwise is applicable to the Indian Act, and is restricted to those persons who are registered as an Indian with the Department of Indian Affairs and Northern Development. Due to the Band (First Nation) membership laws, it is possible to be a band member, though not regarded as an Indian under the Indian Act.
Under section 51, the Minister gets the authority over the property of an Indian who is mentally incompetent to:
- 1. Appoint persons to administer the estate;
2. Pass order for any property to be sold, leased, alienated, mortgaged, disposed of or otherwise dealt with for the purpose of
(i) Paying debts or engagements,
(ii) Discharging encumbrances on property,
(iii) Paying debts or expenses incurred for their maintenance or otherwise for the person’s benefit, or
(iv) Paying or providing for the expenses of future maintenance; and
3. Pass such order and give such directions as the Minister considers necessary to secure the satisfactory management of the estate.
It is also under the powers of the Minister to order that any property situated off-reserve and belonging to a mentally incompetent Indian residing on-reserve be dealt with under the laws of the province in which the property is situated.
Property of minors
Under sections 52 and 4(3) of the Indian Act, the Minister’s jurisdiction is established to administer the property of “Indian” children ordinarily resident on reserve or Crown land, and to appoint a guardian for that purpose. Despite that, as in the case with persons declared mentally incompetent, s. 4.1 expands the definition of “Indian” for s. 52 to include non-status Indian band members. In ss. 52.1 to 52.5, guidelines for the release of funds by the Minister to parents and guardians of infant children are now provided. Taking this into account, section 52.4 correspondingly protects the Minister from liability in respect of such payments made where it appears to a court that the Minister acted honestly and reasonably and ought fairly to be relieved from liability.
Impact of the Family Law Act
Even though the Family Law Act, in general, applies to “Indians” as a result of s. 88 of the Indian Act, any provisions that attempt to deal with possession of property on reserve may not always be applicable. As a result, even though the value of reserve property can be taken into account in determining values for net family property, there may be no order for seizure, partition or sale in respect of property of the deceased located on reserve, unless both spouses are members of the First Nation.