Opinion: Ozhi-ayaan! Making a will

By Alain Bartleman

Most of us would not take a long trip without first taking a few minutes to write out plans and share them with our friends and family. Yet while preparations for the final journey at the end of our life should not be any different, more than 9 in 10 of First Nations individuals ordinarily resident on a reserve do not have a valid will. This is unfortunate, as taking the time to write a will is a useful way to ensure that our final wishes are respected and carried out.

What is a will? Who is responsible for carrying it out?

A will is a document that explains how an estate is to be dealt with after the death of a testator, or person who creates a will. An estate is the property that a deceased had at the movement of death. Many wills also include language instructing the will’s executor or administrator regarding end of life ceremonies. An executor is the person, appointed by the will itself, in charge of carrying out the will, as well as other duties related to the administration of the estate such as the identification of the property forming a part of the estate. An administrator is someone appointed by the Court to do the same function.

What should a Will’s contents look like?

While the terms of a testator’s will vary enormously, a few common questions are helpful to answer before setting pen to paper include:

• Who would you like to appoint to execute the terms of your will?
• How would you like your estate to be divided among your family or friends?
• Are there any special items that should go to certain persons?
• Who is to take care of any dependants?
• What arrangements would you like to see for your end-of-life ceremony, if any?

What Law Applies?

While many First Nations, such as the Muskeg Lake Cree First Nation, have incorporated culturally informed and competent wills and estate provisions into their internal laws, the wills of most First Nations individuals will be subject to either provincial law or the Indian Act.

For persons living off-reserve, Ontario’s Succession Law Reform Act governs how wills are to be written and executed.

For First Nations individuals who are ordinarily resident on a reserve, on the other hand, the validity of a will depends on the discretion of the Minister of Indigenous Services Canada. According to section 45(3) of the Indian Act, “no will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act.”

What the Minister will look at:

There are four factors that the Minister must consider when decided to approve a will under section 45 of the Indian Act:

• Whether the will is in writing.
• Whether the will is signed.
• Whether the will indicates the testator’s wishes or intentions; and
• Whether the will disposes of the testator’s property on death.

If the Minister determines that the factors are not met, it is unlikely that the Minister will accept the will as valid. In this case, the will will be found to be invalid, thereby leaving the deceased person “intestate.”

Why is it important to get the Minister’s Approval?

If a deceased person doesn’t have a will— or if the Minister refuses to accept a will as valid— a deceased person will be considered as “intestate”, meaning that the default rules set out in section 48 of the Indian Act will apply over the wishes of the family.

It is worth noting that the majority of First Nations individuals ordinarily resident on reserve do not have a will. Despite its many uses, and the peace and security that having one can provide to friends and loved ones, the Department estimates that only 9% of First Nations individuals ordinarily resident on a reserve have a valid will. This means that for the remaining 91% of First Nations persons ordinarily resident on reserves, employees of the Department of Crown-Indigenous Services, and not the friends or family of the deceased, will have the final say in allocations of property and end-of-life ceremonies. In most cases, these employees will follow the rules of Section 48 of the Indian Act, which sets out very specific rules for who gets what in the event of a person dying intestate.

If the deceased person had preferences different from those expressed in section 48 of the Indian Act, it will be very difficult to implement his or her wishes without first going to court.

Suggestion

In order to avoid this, it is worth creating a will. Speaking to a lawyer, or writing a will gives control of a person’s end of life to where it should go: back to the person involved.

Miigwetch!

The content provided in this post to be considered as legal information only. It is not legal advice. The contents of this message and do not necessarily reflect the opinion of Nahweghabow, Corbiere.