Canadian Lawyer

32 J A N U A R Y 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m I magine the following scenario: there is a country in which one set of inheritance laws applies to a portion of the population and another set of inheritance laws applies to another portion of the population. These laws grant differential rights to these groups of people, who are distinguishable only by their heritage and residency. This country exists. This country is Canada. Inheritance laws have a significant impact on the distribution and retention of land and wealth, often reflecting the changing values of a given community. Inheritance laws can dramatically impact the develop- ment of society and over the course of a generation, can influence its growth, success, or decline. Over the years, Canadian inheritance law has been revised to reflect changing social mores and values. However, the rules governing wills and estates under the Indian Act 1 (the "Act") and the correspond- ing Indian Estates Regulations 2 (the "Regulations") remain, in many respects, relics of paternalism that are incompatible with modern policies of reconciliation and aboriginal self-governance. Inheritance Law under the Indian Act Section 42(1) of the Act states: "all jurisdiction and Sponsored by authority in relation to mat- ters and causes testamentary, with respect to deceased Indi- ans, is vested exclusively in the Minister" 3 of Indigenous and Northern Affairs (the "Minister"). 4 This jurisdiction applies exclusively to Indians who are ordinarily resident on reserve. 5 The Act grants powers to the Minister which are quasi-judicial and wide- ranging. Most significantly, the Act provides that the Minister may: Appoint and remove exec- utors of wills and administra- tors of estates of deceased Indians; 6 Make any order, direction or finding that she deems necessary with respect to wills and estates of deceased Indians; 7 Refer matters arising out of the will or estate of a deceased Indian to the court that would have jurisdic- tion were the deceased not an Indian, or consent to the exercise of her jurisdic- tion under the Act by such a court; 8 Accept as a will any instru- ment that makes testamentary dispositions, and is signed by an Indian; 9 and Declare the will of an Indian void, in whole or in part, due to: undue influence, lack of testamentary capacity, the imposition of hardship on those "for whom the tes- tator had a responsibility to provide", incompatibility with the provisions of the Act, vagueness, uncertainty, capri- ciousness, or irreconcilability with public interest. 10 The Regulations also grant the Minister discretion to appoint an officer of Indig- The Gathering Storm of Inheritance Law in Canada: The Indian Act - Paternalism or Fiduciary Protection? By Lionel J. Tupman, Partner, WEL Partners PIOTR KRZESLAK/SHUTTERSTOCK.COM

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