When a person who is subject to the Indian Act makes a will, that instrument ought to be valid so long as it complies with the requirements for wills set out in the Act and the Indian Estates Regulations. As noted in Oosterhoff on Wills, the Act and the Regulations “contain a complete code governing testamentary matters of status Indians that is, persons who are registered as Indians or entitled to be so registered and who are ordinarily resident on a reserve or on designated lands.”
Because the Minister of Indigenous Services may determine whether a will subject the Act is valid or void, will challenges involving wills subject to the Act rarely come before the courts. However, the Minister may transfer jurisdiction of such proceedings under subsection 44(1) of the Act, making itpossible for the courts to hear Indian Act will challenges. When jurisdiction is transferred, the court may consider whether the will complies with the Act, in addition to whether the will complies with common law will requirements, as demonstrated by Justice Faieta’s recent decision in Bayliss v Burnham, 2025 ONSC 5376.
The Facts
In this case, the deceased was a wealthy businessman whose estate was estimated to be worth approximately $83 million. After his death, a photocopy of an unwitnessed, typewritten will document dated several months before his passing was discovered. The will left a $38 million interest in a company to one of the deceased’s sons who was also named as estate trustee, and left unequal bequests to his other children, excluding some altogether. The will appeared to bear the deceased’s signature, but because the document was a copy, it did not contain his original “wet-ink” signature.
Since the deceased was a status Indian registered under the Act, the will was subject to the Act. In light of a will challenge brought by several of the deceased’s children, jurisdiction was transferred from the Minister to the Superior Court of Justice. As noted in the Minister’s Order, given the circumstances, a “judicial setting [was] a preferable venue for settling [the] estate.”
Will Invalid Under the Indian Act
Subsection 45(2) of the Act states that “any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death” may be accepted as a will. However, neither the Act nor the Regulations address what constitutes a “signature,” nor do they specify whether an electronic or non-original signature is acceptable. As such, the focus in this case was whether the signature requirement had been satisfied.
Justice Faieta ultimately found that the will was invalid, noting that section 43 of the Personal Information Protection and Electronic Documents Act did not extend to the Indian Act, and thereby did not permit the use of electronic signatures to satisfy the signature requirement applicable to wills.
The evidence before the court also failed to confirm the will’s authenticity. Forensic document examiners reviewed the will, but could not conclusively establish that the signature on it was the deceased’s “naturally” written signature. There was also no indication that the deceased had prepared the document. Multiple witnesses testified that he did not use computers, and analysis of his personal devices revealed no activity related to the preparation or signing of the purported will. Ultimately, the court held that the will was invalid since there was no proof that the deceased had signed the will.
Will Also Invalid Under the Common Law
Justice Faieta went on to address the validity of the will under common law principles applicable to wills, confirming the court’s authority to do so under subsection 44(1) of the Act. Justice Faieta explained as follows:
“… the authority under s. 44(1) to exercise any “other powers, jurisdiction and authority ordinarily vested” in the court also makes applicable the common law related to the validity of a will. Under s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) this Court “has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.” This jurisdiction cannot be displaced absent clear and unequivocal statutory language: J. M. v. Bradley, (2004) 2004 CanLII 8541 (ON CA), 71 O.R. (3d) 171, at para. 43.Further, s. 96(1) of the CJA states that courts shall administer concurrently all rules of equity and the common law.”
Because there was no evidence around the preparation or execution of the will, the rebuttable presumption of knowledge and approval was not applicable. However, even if the presumption had applied, Justice Faieta found that it would have been rebutted as a result of suspicious circumstances surrounding the will’s creation.
Since there was no evidence establishing that the deceased knew and approved of the will, or that it reflected his testamentary intentions, Justice Faieta held that it was also invalid under the common law.
Legal Takeaways
The court’s decision in Bayliss v Burnham is noteworthy in two respects. First, this case confirms that the court may apply common law will principles to wills under the Indian Act so long as jurisdiction has been transferred by the Minister. Second, it provides useful insight into the will signature requirements under the Act, confirming that there must be evidence establishing that the deceased actually signed the will for that document to be considered valid, and that an electronic signature will not suffice. In our increasingly digital world, Bayliss v Burnham affirms that the pen is far mightier than a computer when it comes to signing off on testamentary instruments.
Thank you for reading, and have a great day!
Ian.