ABORIGINAL PRACTICE POINTS Aboriginal estates: Policies and procedures of INAC, BC Region This paper was prepared by Sherry Evans and updated by Susan A. Willis for the Continuing Legal Education Society of British Columbia, April 1, 2007.
2 Key points The Minister of Indian and Northern Affairs Canada (the Minister ) has jurisdiction over the estate of a deceased person if he or she was ordinarily resident on a reserve or on federal or provincial crown land at the time of death, and if he or she was registered or entitled to be registered as an Indian under the Indian Act (an Indian ). Indian estates over which the Minister does not have jurisdiction are dealt with according to the laws of the province that would have jurisdiction if the deceased were not an Indian. The Minister retains authority over transfers of reserve land, except in cases of First Nations operating under the First Nations Land Management Act. The Minister may consent to a transfer of jurisdiction over an estate to the Supreme Court of British Columbia or other competent court that would have jurisdiction if the deceased were not an Indian. Once such a transfer is made, the Indian Act and Indian Estates Regulations continue to apply, but court procedures are also available. The Minister's policy is to appoint an executor or administrator with will annexed in every case of a valid will, regardless of the estate's value. Although Indian wills are not required to comply with provincial legislation and its requirements for validity, such as witnessing, it is recommended that wills be drafted to meet such requirements in case the testator moves off reserve. When there is a will but no executor is named, all beneficiaries, their nominees, or the legal representatives of those without legal capacity are eligible to administer the estate, and Indian and Northern Affairs Canada ( INAC ) notifies them and accept applications. The Minister appoints an administrator if no other beneficiaries object, or chooses one from among the applicants usually the one with the largest interest in the estate. INAC acts as executor or administrator only as a last resort when no beneficiary, nominee, or legal representative of a beneficiary is ready, willing, and able to take on the role. Where an Indian dies without a will, the Minister appoints an administrator, regardless of the estate's value. INAC writes to the heirs, explaining that they may apply to be administrator, nominate someone else, or apply for a consent order to transfer jurisdiction to the Supreme Court of B.C.. INAC appoints as administrator an heir applicant or his or her nominee or legal representative if no others object, or, if more than one person applies, chooses from among them usually the one with the largest stake in the estate. Once the Minister has appointed a non-departmental personal representative for an estate, INAC closes its file and retains a quasi-judicial role of resolving issues arising during administration (for example, determining complaints regarding a personal representative's conduct or challenges to the validity of a will). The Minister retains an ability to re-open an estate to appoint a replacement representative following the death, incapacity, or renunciation of an administrator or executor.
3 If the Minister appoints a departmental personal representative, he or she searches for assets, finds out whether INAC holds any trust funds for the deceased person, searches the Indian Lands Registry for on-reserve land holdings, and assumes care of and control over all known assets. He or she also determines heirs and beneficiaries. On intestacy, common-law partners, children adopted in accordance with band custom, and children born out of wedlock are often entitled to inherit. The Minister also completes tax returns, applies for death benefits, obtains a clearance certificate, pays debts, distributes assets, and accounts to the heirs and beneficiaries. A person who is not a band member cannot acquire a right of possession to reserve land associated with that band. Contents I. Jurisdiction A. When does the Minister of Indian and Northern Affairs Canada have jurisdiction over an estate? B. When may the Minister assume jurisdiction over an estate? C. Role of INAC when the Minister does not have jurisdiction D. Jurisdiction of court 1. Transfer of jurisdiction over estate 2. Referrals to court for questions arising during the administration of an estate II. III. Departmental procedure for the appointment of a personal representative when the Minister has or assumes jurisdiction A. When there is a will 1. General 2. Appointment of executor 3. Appointment of administrator with will annexed 4. INAC as executor or as administrator with will annexed B. When there is no will 1. General 2. Appointment of non-departmental administrator 3. INAC As administrator of last resort Role of INAC after a non-departmental personal representative has been appointed by the Minister A. Administrative function B. Quasi-judicial function 1. Complaints about personal representative 2. Challenge to the validity of a will C. Replacement of non-departmental personal representative on grounds other than complaint
IV. Administration of estates by departmental employees A. General B. Determine, gather, and protect assets C. Determine debts D. Determine heirs and beneficiaries E. Special heirs and beneficiaries 1. Common-law partners 2. Nieces and nephews 3. Custom-adopted children 4. Children born out of wedlock 5. Missing heirs and presumption of death 6. Minors or mentally incompetent persons F. Retain experts G. Complete income tax returns H. Apply for death benefits I. Obtain a clearance certificate J. Pay debts K. Distribute assets L. Account to the heirs and/or beneficiaries V. Gifts of reserve land to non-band members 4 I. Jurisdiction A. When does the Minister of Indian and Northern Affairs Canada have jurisdiction over an estate? In accordance with the Indian Act, R.S.C. 1985, c. I-5, as amended, the Minister of Indian and Northern Affairs Canada (the "Minister") has jurisdiction over the estate of a deceased individual if that person was ordinarily resident on a reserve or on federal or provincial Crown land at the time of his or her death (s. 4(3)), and if he or she was registered as an Indian or entitled to be registered as an Indian (s. 2(1)) (an Indian ). When Indian and Northern Affairs Canada ( INAC ) receives notification of the death of an individual, INAC determines whether the Minister has jurisdiction over the estate. In INAC s assessing whether the deceased was ordinarily resident on a reserve or Crown land, it is the material circumstances and the intention of the deceased that are relevant. For example, if INAC determines that the deceased was living off reserve to obtain medical treatment or for employment or educational purposes but intended at all times to return to reserve residence on a permanent basis, INAC may find that the deceased was "ordinarily resident" on a reserve or Crown land at the time of his or her death. The Minister has no jurisdiction over the estates of First Nation members who are not registered as Indians and are not entitled to be so registered, nor those First Nation members whose ordinary residence is clearly off reserve. Membership in a First Nation does not necessarily entitle an individual to be registered as an Indian, since the Indian Act permits some bands to establish their own membership rules or code (s. 10), which may not require members to be registered as Indians. In confirming jurisdiction, INAC, B.C. Region, requires proof of death, which is generally by way of a Burial Permit or a Certificate of Death from the British Columbia Vital Statistics
5 Agency. The Minister does not have the jurisdiction to presume the death of an Indian for the purpose of administering that person's estate. Individuals interested in having a person presumed dead in British Columbia must obtain a presumption of death finding in accordance with the Survivorship and Presumption of Death Act, R.S.B.C. 1996, c. 444. B. When may the Minister assume jurisdiction over an estate? The assumption of jurisdiction is discretionary. The Minister may assume jurisdiction over the estate of a deceased person who is registered as an Indian or entitled to be so registered, but who was not ordinarily resident on a reserve or Crown land at the time of his or her death, if the estate in question satisfies the following criteria: 1. there is a written request to the Minister from one or more of the heirs or beneficiaries; 2. the estate does not contain off-reserve land; 3. the only significant asset is reserve land; 4. with the exception of the reserve land, the estate is of minimal value (generally, the value of the estate should not exceed $10,000); 5. there are no complex issues that might expose the Minister to liability, such as potential litigation; 6. there are no objections by any of the heirs or beneficiaries to the assumption of jurisdiction by the Minister; and 7. one of the heirs or beneficiaries is willing and able to administer the estate, unless circumstances make it impractical to do so. An assumption of jurisdiction is more likely when the subject estate is interrelated with another estate or estates within the jurisdiction of the Minister. An application for the assumption should be made to the Minister by way of a letter to INAC, B.C. Region, requesting the assumption and setting out how all of the above criteria are satisfied. INAC will notify all heirs and beneficiaries of the application for the assumption. The Minister will not assume jurisdiction over the estate if objections to the assumption are received. If an assumption of jurisdiction order is granted by the Minister, the Indian Act and the Indian Estates Regulations, C.R.C. 1978, c. 954, will apply to the administration of the estate. C. Role of INAC when the Minister does not have jurisdiction When the Minister does not have jurisdiction over the estate of a deceased Indian, all matters relating to that estate, with the exception of reserve land transfers, are dealt with in accordance with the estate law of the Province of British Columbia or other province that would have jurisdiction if the deceased were not an Indian. INAC ordinarily notifies next of kin of the deceased person, in writing, that the Minister has no authority over the estate. INAC also provides the next of kin with information on how to search for reserve land that might be registered in the name of the deceased in the Indian Lands Registry System. Under the Indian Act, the Minister retains authority over the transfer of reserve land to the heirs or beneficiaries, even when the Minister lacks jurisdiction over the estate (s. 49) except in cases of First Nations operating under the First Nations Land Management Act, S.C. 1999, c. 24, as amended. The Minister will not register any administrative transfer of reserve land without documentary proof of a personal representative's authority to act, such as a certified copy of the grant of probate or administration from the Supreme Court of British Columbia or other competent court that would have authority over the estate if the deceased were not an Indian. The reserve land transfer form executed by a personal representative must be approved by the Minister (s. 49).
6 It should be noted that, on intestacy, an interest in reserve land cannot be inherited by heirs more remote than brothers or sisters. Therefore, nieces or nephews may not inherit an interest in reserve land through an intestate estate. In the circumstance where a niece or nephew would inherit an interest in reserve land on intestacy, the interest in the land is transferred to the band, according to s. 48(8) of the Indian Act. Parties dealing with this type of issue may wish to contact INAC. Whenever INAC receives notification of a death of a registered member of a First Nation, even when the Minister does not have jurisdiction over the estate, INAC ordinarily searches for a will in the B.C. Region wills vault. Although INAC no longer assists with the preparation of wills, or accepts wills for storage, a number of original wills remain in the INAC wills vault from the era when INAC stored wills as a matter of course. If a will is located in the wills vault, INAC forwards the original will to the named executor, upon receipt of satisfactory proof of death. INAC also searches for any funds held by INAC to the credit of the deceased person and releases any such funds to the personal representative, upon satisfactory proof of the legal authority of that person to receive the funds on behalf of the deceased's estate. INAC may require a copy of the grant of probate or administration from the Supreme Court of British Columbia or other competent court that would have jurisdiction if the deceased were not an Indian. D. Jurisdiction of court 1. Transfer of jurisdiction over estate The Indian Act provides that the Minister may consent to a transfer of the jurisdiction over an estate from the Minister to the Supreme Court of British Columbia or other competent court that would have jurisdiction if the deceased were not an Indian (s. 44(1)). In the case of every estate falling within the Minister's jurisdiction, INAC provides the named executor or eligible administrator, as the case may be, with the option of seeking from the Minister a consent to the transfer of jurisdiction. In particular, if the estate is likely to be involved in litigation, has significant off-reserve personal or real property, or has assets that require specialized expertise to administer and evaluate, then INAC encourages estate heirs or beneficiaries to request that the Minister consent to a transfer of jurisdiction. A form requesting the Minister's consent to a transfer of jurisdiction is available from INAC, B.C. Region, upon request. The form requires a signed undertaking on the part of the applicant to provide to INAC proof of authority under provincial legislation, such as a copy of a grant of probate or administration from the Supreme Court of British Columbia, or other competent court that would have jurisdiction if the deceased were not an Indian, within 30 days after the Minister consents to the transfer. Once the Minister has made an order consenting to a transfer of jurisdiction over an estate, the provisions of the Indian Act and the Indian Estates Regulations continue to be the applicable law. The court is authorized to exercise the jurisdiction and authority conferred on the Minister by the Indian Act (s. 44(1)). It is unclear the extent to which the court may also apply provincial law. One advantage of a transfer of jurisdiction is that court procedures ordinarily become available to the estate as a result of the transfer.
7 2. Referrals to court for questions arising during the administration of an estate Under the Indian Act, the Minister, in exercising jurisdiction over an estate, may direct that an application for a grant of probate or administration be made to the Supreme Court of British Columbia, or other competent court that would have jurisdiction if the deceased were not an Indian.In addition, the Minister may refer to that court a question arising out of any will or the administration of any estate (s. 44(2)). A direction or referral under s. 44(2) is discretionary and rare, and it does not constitute a transfer of jurisdiction over an estate. II. Departmental procedure for the appointment of a personal representative when the Minister has or assumes jurisdiction A. When there is a will 1. General It is the policy of the Minister to appoint an executor or administrator with will annexed in every case where there is a valid will, regardless of the value of the estate. INAC makes a preliminary determination of whether a will is technically valid, in form, according to the Indian Act requirements for technical validity. Section 45(2) states that the Minister may accept as a will any written instrument signed by an Indian in which he or she indicates his or her wishes or intention with respect to the disposition of his or her property upon death. It is not necessary that the will comply with provincial legislation (Indian Estates Regulations, s. 15), and the provincial requirements for validity, such as witnessing, need not be met. However, it is recommended that Indian wills be drafted to meet provincial requirements (and by default meet the less onerous Indian Act requirements), so as to be effective in the event that a testator moves his or her "ordinary residence" to an off-reserve location between the date of execution of the will and the date of death. 2. Appointment of executor INAC commences the appointment process by writing to the executor named in the will, explaining that he or she may choose one of three options. First, he or she may apply to be appointed as the executor and to have the will approved by the Minister. A departmental application form, which includes an affidavit portion, is generally enclosed with the initial letter sent to the executor. Second, the named executor may choose to renounce. A departmental renunciation form is also sent to the executor with the initial letter. Third, he or she may apply for a consent to the transfer of jurisdiction to the Supreme Court of British Columbia or other court that would have jurisdiction if the deceased were not an Indian. A transfer of jurisdiction form is sent to the executor with the initial letter. If the named executor chooses to administer the estate, he or she must complete and return the application form to INAC, B.C. Region. Although a detailed disclosure of the estate assets is not required with the application, an affidavit and summary disclosure are required to be completed within the application form itself. The Minister reviews the application and, if appropriate, approves the will and appoints the named executor. Once the Minister has signed the Approval of Will (Grant of Probate), INAC forwards the document to the executor, along with an information package about estate administration under the Indian Act, and closes its file.
8 3. Appointment of administrator with will annexed Where there is a will, but the will does not name an executor, or names an executor who is unwilling or unable to act, all beneficiaries named in the will, and the legal representatives of those without legal capacity, are eligible to administer the estate. In these cases, INAC will write to each eligible individual, enclosing an application form, and offer him or her the opportunity to apply to be appointed administrator with will annexed. A beneficiary, or the legal representative of those without legal capacity, may nominate someone else to administer the estate on his or her behalf, and any nominee acquires the same standing as the beneficiary with respect to the order of preference as administrator. Although a detailed disclosure of the estate assets is not required with the application, INAC does require the completion of an affidavit and a summary disclosure of the estate assets within the application form. In every case, INAC offers the beneficiaries, and the legal representatives of those without legal capacity, the option of requesting a transfer of jurisdiction to the Supreme Court of British Columbia, or other competent court that would have jurisdiction if the deceased were not an Indian. Once INAC receives an application to administer the estate, unless all beneficiaries are in agreement as to a proposed administrator, all beneficiaries named in the will, and the legal representatives of those without legal capacity, are notified of the proposed appointment of the applicant and given an opportunity to make objections. The Minister appoints the applicant if no relevant objections are received. If relevant objections are received, the applicant is given an opportunity to respond. He or she may or may not be appointed, depending upon the material circumstances. If more than one person applies to administer the estate, the beneficiary with the largest interest in the estate is presumed to be the person most likely to faithfully carry out the administrative duties, and is generally given preference. INAC generally selects that applicant as the proposed administrator and notifies all other beneficiaries of the proposed appointment of that individual and provides them with an opportunity to raise any objections. Once the Minister has appointed the administrator, INAC forwards the Approval of Will and Appointment of Administrator With Will Annexed (Grant of Letters of Administration With Will Annexed) to the administrator, along with an information package about estate administration under the Indian Act, and closes its file. An appointed personal representative should always safeguard the originally executed copies of the appointment document as evidence of his or her authority to represent the estate. It is important to note that the Minister's formal appointment of personal representatives, by way of the Approval of Will and Appointment of Administrator or Appointment of Administrator with Will Annexed, is a quasi-judicial function, which is equivalent to the judicial grants of probate, administration, or administration with will annexed that are made in other competent jurisdictions. 4. INAC as executor or as administrator with will annexed INAC acts as executor or administrator of an estate only as a last resort. The "administrator of last resort" policy is similar to the policies adhered to in other competent jurisdictions, such as by the Public Guardian and Trustee for the Province of British Columbia, and recognizes the private, family nature and responsibility related to estates. Where a will names INAC as the executor, INAC asks all beneficiaries, and the legal representatives of those without legal capacity, if they wish to administer the estate or to
nominate someone to administer the estate on their behalf. The beneficiary with the greatest interest in the estate, or his or her nominee, is generally given preference. INAC takes on the administration of an estate only as a last resort when there is no beneficiary or legal representative of a beneficiary, or nominee of either, who is ready, willing, and able to take on the role. 9 Similarly, where a will does not name an executor, or names an executor who is unwilling or unable to act, and none of the beneficiaries or the legal representatives of those without legal capacity wish to administer the estate or to nominate someone to administer the estate on their behalf, INAC takes on the administration only as a last resort. B. When there is no will 1. General Where an individual dies without a will, the Minister appoints an administrator in every case, regardless of the value of the estate. The exception to this rule is when the deceased is a minor, unless the deceased minor possessed assets, such as trusts or reserve land, for example, in which case an administrator is appointed. 2. Appointment of non-departmental administrator All heirs-at-law to an estate, as determined under the intestacy provisions of s. 48 of the Indian Act, are eligible to apply to be appointed administrator. The legal representatives of those heirs without legal capacity are also eligible to apply to administer an estate. An eligible administrator may also nominate someone else to administer the estate on his or her behalf. Once INAC has made a preliminary determination of the heirs to the estate in accordance with s. 48 of the Indian Act, INAC writes to each heir, or legal representative of those heirs without legal capacity, explaining that he or she may choose one of three options. First, he or she may apply to be appointed as administrator of the estate by completing the departmental application form enclosed with the letter sent to each heir, which form includes an affidavit and summary disclosure of estate assets. Second, he or she may choose to complete the departmental application form nominating someone else to administer the estate. Third, he or she may apply for a consent to the transfer of jurisdiction to the Supreme Court of British Columbia or other competent court that would have jurisdiction if the deceased were not an Indian. A transfer of jurisdiction form is included with the letter sent to each heir. Once an application is received by INAC, all heirs are notified of the application and allowed an opportunity to raise any objections. If more than one application is received, INAC selects the most suitable applicant and notifies all heirs. Generally, the heir who will receive the greatest benefit from an estate is given preference as the most suitable applicant. If two or more heirs apply who are to benefit equally from an estate, INAC makes a determination on the basis of suitability to administer, in consideration of factors including, but not limited to, business acumen, potential conflict of interest, available time, and proximity of residence. The wishes of the majority of the heirs will also be given significant weight in assessing suitability in every case. If INAC receives objections from the heirs with respect to a potential administrator, INAC determines whether the objections are relevant to the proposed administrator's ability to faithfully administer the estate. If the objections are relevant, the proposed administrator is permitted an opportunity to respond to the objections. He or she may or may not be appointed, depending upon the material circumstances. If the objections are not relevant, the Minister generally proceeds to appoint the proposed administrator.
10 Once the Minister has appointed the administrator, INAC forwards the Appointment of Administrator (Grant of Letters of Administration) to the administrator, along with an information package about estate administration under the Indian Act, and closes its file. 3. INAC as administrator of last resort It is the policy of INAC to act as the administrator of last resort in every possible case. INAC will only take on the administration of an estate when there is no heir or legal representative of an heir without legal capacity, or nominee of either, who is ready, willing, and able to take on the estate administration. The "administrator of last resort" policy is similar to the policies adhered to in other competent jurisdictions, such as by the Public Guardian and Trustee for the Province of British Columbia, and recognizes the private, family nature and responsibility related to estates. III. Role of INAC after a non-departmental personal representative has been appointed by the Minister A. Administrative function Once the Minister appoints a non-departmental, personal representative for an estate, INAC closes its file and has no role in the estate administration. The non-departmental representative is solely authorized and responsible for all administrative functions and decisions required in the course of the administration of the estate. Although INAC cannot provide legal advice, non-departmental administrators requiring general information during the course of administering an estate may wish to contact INAC on its estates toll-free line at 1-888-917-9977 (within B.C.). B. Quasi-judicial function The Minister retains the quasi-judicial role of resolving issues arising in the course of the administration of an estate. Most commonly, the Minister may determine complaints regarding a personal representative's conduct or a challenge to the validity of a will. 1. Complaints about personal representative INAC may re-open an estate file, following the appointment of a non-departmental, personal representative, if a complaint is received about the manner in which an executor or administrator is carrying out his or her duties. Complaints are generally not addressed by the Minister unless they are lodged by persons who have suffered, or may suffer, a direct personal loss as a result of the actions, or failure to act, of the personal representative. A complaint must be submitted in writing to INAC, B.C. Region, and it must detail the alleged breach of the personal representative's duties and obligations. Following the receipt of a relevant complaint, INAC writes to the personal representative advising of the basis of the complaint and providing him or her with an opportunity to respond. If the personal representative does not respond, or provides an unsatisfactory response, the Minister may remove him or her if a lesser remedy is insufficient in the material circumstances. If the Minister determines that removal of the personal representative is necessary, the Minister appoints a replacement using the procedures for the appointment of an administrator
11 2. Challenge to the validity of a will Section 46 of the Indian Act outlines a number of circumstances in which the Minister may declare a will to be void, either in whole or in part. If the Minister declares that a will is void in its entirety, or in part, the intestacy provisions of s. 48 of the Indian Act apply to the estate assets affected by the voided provisions. An application to void a will must be submitted in writing to INAC, B.C. Region, and it must provide details in support of an allegation that one or more of the grounds for voiding a will, enumerated in s. 46 of the Indian Act, apply in the circumstances. If the will voidance application is relevant to one or more of the grounds in s. 46, INAC notifies all beneficiaries under the will, as well as all potential heirs who would inherit upon an intestacy, that an application has been made to the Minister to void the will. INAC also provides each beneficiary and potential heir with an opportunity to make written representations with respect to the will voidance application. The voidance application, and any responding representations from the beneficiaries and potential heirs upon an intestacy, are then reviewed by the Minister, who makes a determination on the voidance application. It should be noted that the Indian Act does not make any specific provision for the variation of wills. C. Replacement of non-departmental personal representative on grounds other than complaint Following the appointment of a non-departmental, personal representative, the Minister retains the ability to re-open an estate to appoint a replacement representative following the death, incapacity, or renunciation of an administrator or executor. The Minister generally does not appoint a replacement representative where there are co-administrators or co-executors, as long as the remaining representative is ready, willing, and able to continue with the administration. In the circumstance where an executor dies, but his or her will names an executor who proves the deceased executor's will, the executor's executor is generally given the authority to administer both estates. If there is no executor for a deceased executor's estate, the Minister appoints an administrator from among the beneficiaries under the deceased's will, in the same manner as if there had been no executor. In all cases, INAC acts as administrator only as a last resort. IV. Administration of estates by departmental employees A. General INAC policies and procedures are developed in accordance with the Minister's obligations and may differ from the obligations of a non-departmental representative. They are also subject to change. What follows is a summary of some, but not all, of the steps that INAC, B.C. Region, may take in the course of the administration of a testate or intestate estate, as the case may be. B. Determine, gather, and protect assets Following his or her appointment, a departmental, personal representative carries out a broad search for assets, in consultation with the heirs and/or beneficiaries of the deceased person whenever possible. Financial institutions, employers, government bodies, and property registries may be contacted, depending upon the circumstances.
12 The departmental representative always inquires whether INAC holds any funds in trust for a deceased person. In particular, if the deceased was a minor, or was declared mentally incompetent prior to his or her death, INAC may hold funds in trust to that person's credit. Other INAC trust funds may include treaty arrears. The departmental representative also searches in the Indian Lands Registry System for on-reserve land holdings. A search for off-reserve land is also carried out if the departmental representative has reason to believe that the deceased owned off-reserve land. The departmental representative assumes control over all known estate assets and takes all reasonable steps to protect them from loss, theft, or deterioration, pending the distribution of the estate. C. Determine debts The departmental representative takes all reasonable steps to determine whether the deceased had any debts at the time of death. The departmental representative posts a Notice to Creditors, Heirs and Other Claimants at the office of the First Nation of which the deceased was a member, or at any other known meeting place of the members of the First Nation to which the deceased belonged and where notices are usually posted. The notice is also posted in the post office nearest the deceased's last place of residence and in the Funding Services Directorate of INAC. All creditors have eight weeks within which to make claims, in accordance with s. 8(1) of the Indian Estates Regulations. D. Determine heirs and beneficiaries If there is a will, the departmental representative reviews the will to determine the beneficiaries of the estate. To determine heirs on an intestacy, the departmental representative applies the provisions of s. 48 of the Indian Act. E. Special heirs and beneficiaries 1. Common-law partners As of September 4, 2001, the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 ("MBOA"), amends s. 48 of the Indian Act by replacing the word "widow" with the word "survivor". "Survivor" includes a common-law partner of at least one year, as well as a legal spouse. Section 148(2) of the MBOA adds the definition of "survivor" to s. 2(1) of the Indian Act, as follows: 'Survivor', in relation to a deceased individual, means their surviving spouse or common-law partner. Section 148(2) of the MBOA also adds the definition of "common-law partner" to s. 2(1) of the Indian Act as follows: 'common-law partner', in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. A person wishing to be considered a common-law partner will be required to execute a statutory declaration available from INAC for this purpose. 2. Nieces and nephews It should be noted that, on intestacy, an interest in reserve land cannot be inherited by heirs more remote than brothers or sisters. Therefore, nieces or nephews may not inherit an
interest in reserve land through an intestate estate. In the circumstance where a niece or nephew would inherit an interest in reserve land on intestacy, the interest in the land is transferred to the band, according to s. 48(8) of the Indian Act. Parties dealing with this type of issue may wish to contact INAC. 13 3. Custom-adopted children Children adopted in accordance with Indian custom are treated in the same way as children born to or legally adopted by the deceased person. The definition of "child" in s. 2(1) of the Indian Act, as amended by s. 148 of the MBOA, states as follows: 'child' includes a legally adopted child and a child adopted in accordance with Indian custom. In order to be eligible to inherit, the custom adoption must be recorded within the Indian Registry System prior to the distribution of the estate. If the custom adoption of an heir cannot be registered, then that individual will not be included in the estate distribution. In cases where the custom-adopted person is not eligible for registration, and will not become eligible for registration as a result of the custom adoption, the custom adoption is not registrable within the Indian Registry System. In these rare circumstances, the departmental representative may make a finding of custom adoption if certain criteria are met. 4. Children born out of wedlock The Indian Act entitles any child, born in or out of wedlock, to inherit from a parent's estate if the death occurred after April 17, 1985. Similarly, a parent may inherit from the estate of his or her child born in or out of wedlock. However, for intestate deaths occurring prior to April 17, 1985, the effective date for the Bill C-31 amendments to the Indian Act, a child born out of wedlock is entitled to inherit from his or her mother's estate but not from his or her father's estate. Similarly, a mother may inherit from her child's estate, but a father cannot inherit from the estate of his child born out of wedlock. Where a will leaves assets to a "child" or "children", and the death occurred prior to April 17, 1985, a child born out of wedlock may not inherit from his or her father unless a contrary intention is indicated in the will. However, the child may inherit as a "child" or "children" of his or her mother. 5. Missing heirs and presumption of death Pursuant to s. 13 of the Indian Estates Regulations, an heir may be presumed dead after a period of seven years. The time period commences at the time of the distribution of the estate. Alternatively, a presumption of death finding may be sought from the court by the missing heir's relatives in accordance with provincial legislation, such as the Survivorship and Presumption of Death Act, R.S.B.C. 1996, c. 444. 6. Minors or mentally incompetent persons Since a minor or mentally incompetent heir is not competent to advance an inheritance claim, the departmental representative notifies an Indian Monies officer of INAC, B.C. Region, if a minor or mentally incompetent person is a potential heir or beneficiary. The Indian Monies officer will determine whether the Minister has or will assume jurisdiction over that individual. If the Minister does not have and will not assume jurisdiction, the departmental representative may contact the Public Guardian and Trustee for the Province of British Columbia.
F. Retain experts If necessary, the departmental representative retains experts. Their fees are ordinarily paid out of the estate assets. G. Complete income tax returns 14 The departmental representative files the requisite income tax returns for the deceased and for the estate. H. Apply for death benefits The departmental representative applies for death benefits for which the estate may be eligible, including those under the Canada Pension Plan. I. Obtain a clearance certificate The departmental representative applies for a Clearance Certificate from the Canada Revenue Agency. J. Pay debts The departmental representative is authorized to pay the deceased's debts in accordance with s. 11(4) of the Indian Estates Regulations. The departmental representative may sell estate assets for this purpose. Where the assets are insufficient to satisfy debts, the departmental representative pays the debts in their required priority, including, where applicable and necessary, on a pro rata basis. In accordance with s. 89(1) of the Indian Act, a non-indian creditor may not seize the on-reserve personal or real property of an Indian to satisfy a debt. K. Distribute assets After the debts are paid, the departmental representative distributes the estate assets, or the proceeds from the sale of the estate assets, among the entitled heirs or beneficiaries. As long as the departmental representative complies with the will or, in the case of an intestacy, with the intestacy provisions of the Indian Act, it is not necessary that the heirs agree with the proposed distribution, although the departmental representative attempts to obtain the consent, whether implied or otherwise, of all heirs, whenever possible. L. Account to the heirs and/or beneficiaries The departmental representative accounts to the heirs and beneficiaries as to the administration of the assets, liabilities, and distribution of the estate, and INAC then closes its file. V. Gifts of reserve land to non-band members Pursuant to the Indian Act, a non-band member cannot acquire a right of possession to reserve land associated with that band (s. 50(1)). Issues related to s. 50 are now before the court, and interested parties should contact INAC in the circumstances of a non-band member being in a position to inherit reserve land.