Today’s blog is the final post in a series on the wills and estates of Indigenous persons subject to the Indian Act,* and focuses specifically on will challenges. In keeping with how the Act has a separate process governing the probate of estates, the creation of wills, and intestate succession, the Act also has its own specific procedure for will challengesthat is distinct from how will challenges proceed in the Superior Court of Justice.
The Minister of Indigenous Services has authority to declare a will void, in full or in part, under section 46 of the Act. Many of the bases for declaring a will void under the common law are recognized under the Indian Act, including duress, undue influence, and lack of testamentary capacity. However, the Minister may also declare a will void on a number of other bases set out in section 46 that may not be recognized under the common law, including:
- if the will would impose hardship on a person who the deceased was responsible to provide for;
- if the will disposes of reserve land in a manner contrary to the interest of the band or contrary to the Indian Act;
- if the terms of the will are so vague, uncertain or capricious that the proper administration and equitable distribution of the estate would be difficult or impossible to carry out; or
- if the terms of the will are against the public interest.
A party with an interest in the deceased’s estate may also apply to void a will under section 46 on any of these bases, but only if the Minister has already approved the will: see Thorne v. Canada (Indigenous and Northern Affairs, 2017 FC 1116.
In terms of procedure, the Minister does not have to follow the same procedure as a court of probate if an application is made to void a will. For example, such an application may be decided using written submissions alone. However, the Federal Court confirmed earlier this year in Jack v. Wildcat, 2024 FC 1 that the process adopted by the Minister must be fair and include procedural protections comparable to those in a probate court, “otherwise a distinction arises simply because an individual is an Indigenous applicant”. In this case, a daughter applied to challenge her mother’s will under section 46 of the Act. After her siblings provided reply submissions to the Minister in response to the will challenge, the Minister and her delegates would not permit the applicant challenging the will to submit rebuttal, retort, or additional submissions in reply – the prescribed process at Indigenous Services Canada did not include a right of reply. The applicant appealed the Minister’s decision to the Federal Court under section 47 of the Act, arguing that the Minister’s chosen procedure was unfair and that she should have been given an opportunity to respond to her siblings’ reply submissions. The appeal was granted, with the court confirming that since a will challenge under section 46 “approaches judicial decision-making”, a higher degree of procedural fairness is required during such proceedings. Justice Ahmed went on to hold:
… It is troubling that section 46 as applied in the Decision enabled the Minister to create a process that affords fewer procedural protections than provincial superior courts. Adopting this interpretation would lead to Indigenous beneficiaries of estates administered under theAct to be treated differently than beneficiaries of estates administered outside of the Act.
[64] This Act cannot be read such that Indigenous Peoples’ ability to create wills is lesser than non-Indigenous individuals’ by virtue of Indigenous individuals creating wills under the Act. A fundamental purpose underlying the Act is the preservation of the land base or ancestral territories for the benefit of a band and its members (Okanagan Indian Band v Bonneau, 2003 BCCA 299 at para 32). To interpret this Act in a manner that narrows Indigenous Peoples’ rights and abilities belies this purpose and risks a paternalistic and archaic approach to the creation of wills under the Act. In turn, such an interpretation risks dispossessing Indigenous Peoples of a legal freedom afforded to non-Indigenous people and placing undue procedure-creating power in the hands of the Minister …
…
[70] If there is never a circumstance in which an applicant is entitled to a reply, a lower procedural fairness standard for wills made by Indigenous Peoples is necessarily created. Consequently, beneficiaries of estates administered under the Act are treated differently than beneficiaries of estates administered outside of the Act. I echo my colleague Justice McVeigh’s commentsthat this Court has recognized that the Minister’s jurisdiction in Indigenous testamentary matters goes above and beyond the jurisdiction of historic probate courts of common law (Longboat v Canada (Attorney General), 2013 FC 1168 at para 39; see e.g. Earl v Canada (Minister of Indian and Northern Affairs), 2004 FC 897 at para 13). The Minister should thus be intimately aware of the importance of adequate procedural fairness considerations.
Not surprisingly, Justice Ahmed confirmed that the Minister should have provided the appellant with an opportunity to respond to her siblings.
A party who wishes to challenge a will may also ask the Minister to transfer jurisdiction over the will challenge to the Superior Court of Justice under subsection 44(2) of the Act. This can be advantageous, as the Superior Court has “ampler and more effective machinery to investigate in the circumstances related to testamentary capacity or duress”: Earl v. Canada (Minister of Indian and Northern Affairs), 2004 FC 897. There is also a departmental policy to transfer jurisdiction when “the estate has demonstrated high level of conflict that has arisen amongst the heirs/beneficiaries that may be better placed in a court setting for resolution”: see Brooks v. Canada (Indigenous Services), 2022 FC 1064.
If a party petitions the Minister to transfer the proceedings, but the petition is dismissed, there is no right of appeal. However, the court held in Brooks that the Minister’s decision may be challenged through an application for judicial review.
To learn more about the estates of Indigenous persons subject to the Indian Act, see Probating Indigenous Estates and Testate and Intestate Succession Under the Indian Act.
Thank you for reading, and have a great day!
Suzana.
* The term “Indian” is used in this blog post even though it is outdated, because it has legal meaning under the Indian Act. As noted by Justice Ahmed in Jack v. Wildcat, 2024 FC 1, the term Indigenous Peoples “more respectfully denotes those who lived on this land before settlers arrived”.Where possible, the term Indigenous is used.