5,483
edits
Difference between revisions of "First Nations and Wills (16:X)"
Jump to navigation
Jump to search
First Nations and Wills (16:X) (view source)
Revision as of 19:55, 27 June 2016
, 19:55, 27 June 2016no edit summary
Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = wills}}") |
Desy Wahyuni (talk | contribs) |
||
| Line 1: | Line 1: | ||
{{LSLAP Manual TOC|expanded = wills}} | {{LSLAP Manual TOC|expanded = wills}} | ||
'''Before drafting a will for a First Nations person, please consult with the supervising lawyers. The client should most likely have to be referred to an outside lawyer. There are many complexities with First Nations wills, and LSLAP will likely not be able to assist.''' | |||
A student must decide whether or not the client comes within the scope of the ''Indian Act'', RSC 1985, c I-5. Section 45(3) is the relevant section of the Act; it provides that a will executed by an Indian, as defined by the Act, is of no legal force and effect as a disposition of property until the Minister has approved the will or a court has granted probate pursuant to the ''Indian Act''. | |||
The definition of “Indian” in the Act means “registered Indian ordinarily resident on a reserve”. The ''Indian Act'' states that “[t]he Minister may accept as a will any written instrument signed by an Indian in which they indicate their wishes or intention with respect to the disposition of their property upon his death”. “Instrument” in this context does not mean anything special: letters, wills, and notes are all “instruments”. | |||
The student must be aware of the on-reserve/off-reserve Indian dichotomy. A First Nations person living off-reserve is essentially under the same rules and constraints as any other Testator who isn’t classified as an “on-reserve Indian”. | |||
Finally, if a registered First Nations person “living on reserve dies intestate, or their will is not clear or not valid, the Department of Indian Affairs will apply to the estate the rules set out in the ''Indian Act'' and the ''Indian Estates Regulations'', CRC 1978, c 954”. | |||
For further information on wills for First Nations persons, consult “Wills for First Nations persons” in Practice Points: Aboriginal Law, available on the BC Continuing Legal Education website at http://www.cle.bc.ca/PracticePoints/ABOR/wills.html. | |||
'''NOTE:''' It is important to determine whether there exist any applicable treaties that may affect a First Nation client’s will. For example the Nisga’a Treaty provides that a Nisga’a citizen’s cultural property devolves according to Nisga’a law. | |||