Solicitor’s Tip – May 2025
A number of unique considerations are relevant when drafting wills for Indigenous persons who live on reserves. For lawyers who currently assist such clients or want to expand their practice, the new Guide to Wills and Estate Planning for First Nations Clients Living on Reserves,published by the British Columbia Law Institute earlier this year, could be a helpful resource.[1] Inspired by the practical will drafting advice included in the Guide,this month’s Solicitor’s Tip focuses on three specific points to consider or address with Indigenous clients at the outset of the will drafting process.[2] One of the first things that lawyers should consider is which legal regime applies to the client’s will. Planning lawyers may also wish to take care to ensure they understand the nature of the client’s family relationships, and make it a practice to include additional identifying information in the wills of Indigenous clients.
Confirming Which Legal Regime Applies to the Client’s Will
When assisting an Indigenous client, it is important to ascertain which legal regime applies to the client’s will. Because “Indians” fall under federal legislative jurisdiction,[3] provincial laws applicable to succession and estatesare typically displaced by the Indian Act.[4] More specifically, wills may be required to comply with the Indian Act if they are prepared for:
- individuals who are “ordinarily resident on reserve land or land belonging to the Crown in right of Canada or a province, or [were] so at the time of death”; and
- individuals with status who are registered in the Indian Register that Indigenous Services Canada is required to maintain, or individuals who are entitled to be registered therein.[5]
Notwithstanding the federal government’s jurisdiction, counsel should not presume that the Indian Act applies to all Indigenous persons who live on reserves. Wills and estates may instead be governed by modern treaties, self-government agreements, or First Nations law passed under a land code authorized by the Framework Agreement on First Nations Land Management Act.[6] When in doubt, the Guide suggests consulting with the client’s band office or the chief administrative agency of the client’s First Nation in order to verify the law applicable to the client’s will.[7] Counsel should also bear in mind that a different legal regime may apply to the disposition of particular assets, such as a possessory interest in reserve land, as compared to the rest of the client’s estate.[8]
It is further advisable for the client’s will to be executed in compliance with the formalities articulated in the Succession Law Reform Act,[9] recognizing that the client may reside off-reserve when they pass away.[10] Under such circumstances, the client’s will may have to comply with the formal legislative requirements articulated in the SLRA in order to be probated; otherwise, the will may have to be validated by the Superior Court of Justice under section 21.1 of the SLRA.
Understanding the Nature of the Client’s Familial Relationships
When meeting with an Indigenous client, kinship terminology may be used to describe the client’s beneficiaries and executor, even if those individuals are not biologically related to the client. On this basis, the Guide recommends confirming the actual nature of the client’s relationship with all such individuals, to ensure that accurate terminology is used in the client’s will.[11] On a similar note, it is also advisable to confirm the nature of the client’s relationship with other individuals in their family group, recognizing that customary and informal adoptions are common.[12]
Including Additional Identifying Information in the Will
It may also be good practice to include additional personal information about the client and the First Nation to which they belong in the will. The Guide recommends drafting a will to include the will-maker’s band membership number and the First Nation to which they belong, including whether they belong to a treaty First Nation.[13]
Because many band members may have the same first and last names, the Guide further recommends including additional identifying information about anyone named in the client’s will, such as beneficiaries and the executor, to ensure that the correct person is identified. The Guide suggests including those individuals’ dates of birth and/or physical addresses in the will.[14]
Conclusion
When drafting a will for an Indigenous client who lives on a reserve, counsel can take three steps to help ensure that the will is accurate and effectively disposes of the client’s estate. First, the legal regime applicable to the client’s will must be ascertained. Second, the nature of the client’s family relationships ought to be discussed, to ensure that the will uses proper terminology. Third, the will ought to include additional identifying information regarding the client and their First Nation, in addition to the beneficiaries and even the executor. For more guidance on this subject, see the BCLI’s Guide to Wills and Estate Planning for First Nations Clients Living on Reserves.
[1] British Columbia Law Institute, Guide to Wills and Estate Planning for First Nations Clients Living on Reserves (February 2025), online: <https://www.bcli.org/wp-content/uploads/Estate-Planning-On-Reserves-Final.pdf> [Guide].
[2] Next month’s Solicitor’s Tip will focus on a more specific issue – practical will drafting tips salient to disposing of a possessory interest in reserve land.
[3] See the Constitution Act, 1867,30 & 31 Vict, c 3, s 91(24).
[4] RSC 1985, c I-5, ss. 42-50.1.
[5] Eligibility requirements for registration are articulated in ss. 6 and 7 the Indian Act, ibid. Also see the Guide, supra note 1 at 10-11. Typically, Indigenous persons with status receive a status card stating their identification information, registration number, and the band (First Nation) to which they belong.
See also Suzana Popovic-Montag, “Probating Indigenous Estates: Who Has Jurisdiction?” (28 August 2024), online (blog): Hull & Hull LLP <https://hullandhull.com/2024/08/probating-indigenous-estates-who-has-jurisdiction/>.
[6] SC 2022, c 19, s 121. First Nations who have signed the Framework Agreement can be found online. See the Lands Advisory Board and First Nations Land Management Resource Centre, online: <https://labrc.com/signatory-first-nations/>.
[7] Guide, supra note 1 at 9-10.
[8] Ibid at 9.
[9] RSO 1990, c S.26, s 4 [SLRA].
[10] Guide, supra note 1 at 18.
[11] Ibid at 18-19. For example, a client may describe an individual as their niece or nephew, even though that person is not actually a blood relative, if that individual is the daughter or son of a person in the client’s family group.
[12] Ibid at 20.
[13] Ibid at 18.
[14] Ibid.