Is a will different for people who live on reserve?

A will is a written document where you describe what should happen to your property after you die. It must follow certain rules to be considered valid (legal).

If you’re registered under the Indian Act and you live on reserve or Crown land, the wills process is guided by the Indian Act and the Indian Estates Regulations. Before anyone named in the will can receive money or property, the Minister of Indigenous Services Canada must approve the will.

If an Indigenous person living on reserve or Crown land dies without a will, their property is distributed according to the same act and regulations.

I’m registered under the Indian Act and live on reserve or Crown land. How do I make a will?

You can write your own will, but it must follow certain rules to be legal.

The main law about wills and estates in BC is the Wills, Estates and Succession Act (WESA). Some of its requirements for writing a will (like having witnesses) won’t apply to you. Instead, see sections 42 to 50 of the Indian Act and the Indian Estates Regulations.

A will has to be a written (physical) document and created freely by a person with the mental capacity to do so, who has not been pressured by anyone else. The Indian Act also mentions a few other reasons that a will can be declared to be void.

Writing Your Own Will: A Guide for First Nations People Living on Reserve (PDF), published by the Aboriginal Financial Officers Association of BC, explains how to make a will, with blank examples of wills. You may want to seek advice from a lawyer if any of the following is true:

• You own and run your own business.
• You own land off reserve.
• You own a lot of property, such as bank accounts or investments, especially if some is off reserve.
• You are separated but not divorced, are dealing with a complex divorce, or have unresolved issues about your children.
• You plan to leave nothing to a close relative, separated spouse, or adult children, and you think they might challenge your will.

What happens if a will is not valid?

The Indian Act (section 46) explains what would make a will invalid:

• The person who wrote the will was pressured and wasn’t mentally sound.
• The will unfairly harms the person the will maker was supposed to support.
• It disposes of land in ways that go against the band’s interests or the Indian Act.
• It’s unclear or has conflicting terms that make it hard to manage and distribute the estate properly.
• It goes against the public interest.

If the minister or a court declares the will to be completely invalid, it’s as if the person never made a will. Their estate will be handled as if they had died without one. If only part of the will is invalid, any gifts or property mentioned in that part will be treated as if they weren’t in the will.

Helpful information

• Wills and Estates on Reserve (Legal Aid BC): This page explains how wills and estates work on reserve and what happens if you inherit land on reserve where you’re not a member.
• Estate Administration On-Reserve: A Guide for Executors and Administrators in British Columbia (PDF) (Indigenous Services Canada): This guide provides general information on administering simple estates under the Indian Act. Use it with the Templates Package (PDF), which contains forms and sample letters.
• Legal Information for Indigenous People (Bella Coola Legal Advocacy Program): This resource has a section called “Death and Taxes” that covers wills, estates, representation agreements, and taxation.

Helpful services

• Indigenous Community Legal Workers (Legal Aid BC): This service helps you with legal information and limited advice on issues including wills and estates.
• First Nations and Metis Outreach Program (The Law Centre at the University of Victoria): This service provides legal advice, assistance, and representation to First Nations and Metis clients who live in the Capital Regional District.
• Indigenous Community Legal Clinic (ICLC) (UBC’s Peter A. Allard School of Law): This service helps eligible clients who can’t afford a lawyer and who self-identify as Indigenous with creating a will and searching for wills.
• Find more services.