Aboriginal Intestacy in Canada

On Monday I revisited ideas that had been previously discussed about Indigenous Australians and their intestate estates. It provided some pause to consider the treatment of Indigenous populations in Commonwealth settler societies (countries colonised by the English). In Canada both Provincial law and the Federal Indian Act ( “the Act”)govern Indigenous Estates.

The Act provides that where the deceased is an Indian “ordinarily resident” on reserve or Crown land the Minister o of Aboriginal Affairs and Northern Development Canada (“the Minister”) has authority to act as the administrator of last resort and make decisions regarding the deceased’s estate.

If the deceased has made a Will the Minister must approve the will. If there is no will, or the Minister cannot approve the will, or the will has been challenged and declared void, then the estate will be distributed according to the Act.

A valid will names an executor and that is the person usually appointed by the Minister. If there is no will the Act determines who the heirs are and the Department of Aboriginal Affairs and Northern Development Canada (“the Department”) tries to find an heir who wants to administer the estate. Once an administrator or executor is appointed the Department is not involved in the day-to-day administration of the estate.

The process prescribed in the Act is usually quicker than the court process, however there are some procedural drawbacks.

It is unclear whether the Federal jurisdiction over Indians testamentary matters operates to the exclusion all provincial law. For instance Provincial laws dealing with the formalities of execution need not be followed for an Indian’s will to be valid.

The Minister has a limited power to change a deceased’s will if it would cause hardship on persons for whom the testator had a responsibility to provide.

The first step is to find out if the deceased wrote a will. The will most likely names a person as executor. The executor is the person named in the will who will be responsible for administering (settling) the estate.

Once the Department appoints the executor, the executor has the authority to:

  • pay debts,
  • call in money owed to the deceased,
  • transfer the deceased’s reserve land to their beneficiaries, and
  • distribute other assets of the estate.

If there is no will, the Act sets out rules for intestate succession. If the estate is less than $75,000, the whole estate goes to the spouse or de facto. If the estate is greater than $75,000, the spouse or de facto gets the first $75,000 and the remainder is shared between the deceased’s children and/or other relatives.

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