May 14th, 2018 by FH&P Lawyers

Are you curious about the laws surrounding wills for Westbank First Nations people living on reserve land? The estates of members of the Westbank First Nation (“WFN”) who live on reserve land are governed by the Indian Act (“IA”). Under the Westbank First Nation Constitution, the WFN may elect to pass laws in relation to wills and estates that would take them outside the provisions of the IA (s. 109); however, as of the date of this blog, the WFN has not yet elected to do so. Please note that this is a complex area of law and legal advice should be obtained for specific situations. The following includes a brief overview of a few things to keep in mind when it comes to wills and estates that are governed by the IA.

Under the IA, wills do not require the same formalities as are required under the Wills Estates and Succession Act (“WESA”), they simply must be in writing and signed by the will maker. This is different than WESA, which also requires two witness signatures. The Minister of Indian Affairs and Northern Development has exclusive authority over wills governed by the IA, and such wills are not of legal force until the Minister has approved the will or the BC Supreme Court has granted probate pursuant to the IA (s. 45). Before the BC Supreme Court can grant probate, however, the Minister must give his consent. The Minister also has discretion to declare the will to be void in whole or in part if he is satisfied that:

  • the will was executed under duress or undue influence;
  • the testator at the time of execution of the will lacked testamentary capacity;
  • the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;
  • the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;
  • the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or
  • the terms of the will are against the public interest.

When it comes to the content of a will governed by the IA, the most important restriction is that only members of the WFN can have an interest in real property located on WFN reserve land. This restriction is rooted in the Crown’s fiduciary duty to prevent First Nations from being exploited in relation to reserve land. Section 18 of the IA outlines the requirement that reserve lands must be held by the Crown for “the use and benefit of the respective bands for which they were set apart,” as well as the discretion of the Governor in Council to determine whether reserve lands are being used for the use and benefit of the band.

This means that if you are a member of the WFN and you have an interest in real property located on WFN reserve land, you can only bequeath that real property to another member of the WFN. Similarly, a person who is not entitled to reside on reserve land cannot acquire a right to possession or occupation that land through a will (s. 50). These restrictions could also lead to problems where a non-member or a person who is not entitled to reside on reserve land is appointed as an executor, as any real property located on WFN reserve land would not be able to pass through that executor in order to be transferred to the beneficiaries named in the will.

If you think the IA may apply to your estate, make sure to speak with a lawyer and obtain legal advice on how to best ensure your wishes are carried out.

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