Death and Taxes (Legal Information for Indigenous People)

Wills

On Reserve: to be valid, a will under the Indian Act must:

1. Be in writing (*audio/video wills/oral instructions are not accepted)
2. Be signed by the will-maker
3. Give away something the will-maker owns
4. Be intended to take effect upon death
5. Have 2 adult witnesses (not beneficiaries or their spouses)
6. Be dated

The person writing the will must be

• A “Status Indian” under the Indian Act
• considered “ordinarily resident on-reserve”
• 16 and older
• Free from pressure or influence

In addition to these requirements, it is important to include the following in your will:

• Name executor and alternate to manage your estate
• Who you want to care for your children
• Funeral directions
• Make gifts of specific assets (e.g., your house, boat, car, jewelry, art, television etc.)
• The residue/remainder (what is left over after payments of debts and gifts of your estate)

For step by step directions use the template in “Writing Your Own Will - A Guide for First Nations People Living on Reserve (Revised 2019).”

https://afoabc.org/wp-content/uploads/2021/03/AFOA-BC-Wills- and-Estates-Booklet-2019.pdf. For questions contact Indigenous Services Canada, Estates Unit, 1.888.917.9977 or BCEstates@sac-isc.gc.ca

Indigenous people on reserve can leave their home to people who are members of their band or entitled to be, as long as the house is located on a Certificate of Possession lot (“CP”). A CMHC house cannot be given away in a will. Check with your Band’s housing department to find out what happens to a CMHC house or Custom allotment in the event you pass away.

Off reserve the law for writing wills is the Provincial legislation Wills and Estates Succession Act (WESA). There is an online template at MyLawBC that can help you make a simple will that says what you want to happen after you die: https://mylawbc.com/pathways/make-a-will.

For Legal Advice about Wills, call Access Pro Bono Justice to schedule a free 1/2 hour phone appointment with a lawyer 1-877-762-6664.

Estates

An Estate is all of the money and property (and debts) left after someone dies. Estates fall under federal jurisdiction with Indigenous Services Canada (ISC) when someone passes away who is “ordinarily resident” on reserve (meaning if they were living away from the reserve, it was only for school, medical etc.).

The person named in the Will as the Executor has the job of settling the affairs of the deceased: paying the bills, filing taxes, closing accounts, and generally following the wishes of the deceased in their will. If there is no will, then the family (and ISC) will appoint an Administrator. ISC will send the Administrator a certificate showing their appointment.

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Executors and family members are Not liable for the debts of the deceased. The Executor’s role will be to pay bills from money in the Estate before any beneficiaries are paid. If no money, then no bills get paid.

If your common law partner or spouse has passed and you are wondering how your home on reserve is effected, the Family Homes on Reserve and Matrimonial Interests or Rights Act will likely apply. If so, you:

• are entitled to remain in the home for 180 days, even if renting and even if not a Band member
• can apply under the Act for exclusive occupation of the home beyond the 180 days (depends on situation)
• may apply within 10 months of the death for a court order to determine entitlement

If you are entitled to this right or interest, note that you will not also be able to receive an amount under the will for the same property.

In law, the directions given by a client to their lawyer about either the conduct of their affairs or a court proceeding.

The person responsible for carrying out the instructions in a will and wrapping up a deceased person's estate and debts. The lovely feminine form of the word is "executrix," though the masculine form is commonly applied to executrices and executors both. See "estate," "testator," and "will."

In law, all of the personal property and real property that a person owns or in which they have an interest, usually in connection with the prospect or event of the person's death.

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

An act; a statute; a written law made by a government. See "regulations."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Something which can be owned. See "chattels" and "real property."

With respect to courts, (1) the authority of the court to hear an action and make orders, (2) the limits of the authority of a particular judicial official, (3) the geographic location of a court, or (4) the territorial limits of a court's authority. With respect to governments, (5) the authority of a government to make legislation as determined by the constitution, or (6) the limits of authority of a particular government agency. See “constitution."

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."