Additional considerations arise when doing estate planning for indigenous clients.
Members of a band or nation hold “ownership” of land by a certificate of possession which gives them the right to use and lease for their own benefit the land for which they hold the certificate of possession. Only a member of a particular nation or band can hold a certificate of possession for lands in that nation or band’s reserve. A certificate of possession cannot be sold or transferred to anyone who is not a member of that nation or band. Typically, if a member wants to transfer an interest in their land to a person who is not a member of the nation or band, they will do so by granting a registered lease to that person.
To effectively pass the right to the use and benefit of the land to their heirs, a Will for a member of that nation or band must leave the certificate of possession to a member of that nation or band. A Will that tries to do otherwise will not be approved by the Minister of Aboriginal Affairs and Northern Development.
Under the Indian Act, Wills for indigenous people must still be approved by the Minister before they can be administered. The Minister has the right to declare the Will void in whole or in part, if they think there was duress or lack of testamentary capacity, or if the Will did not provide for the deceased’s spouse or children, or if the Will tries to dispose of land in a manner contrary to the Indian Act. If the Will is declared void, the provisions of the Indian Act dealing with intestacy will apply.
Sometimes the spouse of the member is not a member of the nation or band, so consideration must be given to how to protect that spouse’s right to remain on the lands held by the member after the death of the member. It might be done by leaving the certificate of possession to a member of the nation or band and directing that the interest is subject to registering a lease in favour of the spouse for the spouse’s lifetime or some other period of time. There is no community of real or personal property situated on a reserve.
An indigenous person who lives off the reserve and does not have a certificate of possession on the reserve may have his or her estate dealt with through the usual probate process in the Supreme Court.
