The recent decision in Bayliss v. Burnham, 2025 ONSC 5376 provides insight into how estate issues involving the Indian Act (the “Act”) are resolved. Kenneth Ryan Hill (“Kenneth” or the “Estate”) passed away from natural causes on January 18, 2021 in Miami, Florida. Kenneth was a status Indian registered under the Act, a permanent resident of the Six Nations of the Grand River Reserve and a member of the Mohawk Nation. Kenneth co-founded Grand River Enterprises (“GRE”), a large tobacco company, with his business partner, Jerry Montour (“Jerry”). At the time of his death, the Estate had an approximate value of $83 million, including

• $38 million in GRE shares;
• $45 million in real and personal property, boats, vehicles, and bank accounts located in Canada, the US and the Bahamas; and
• On-reserve real property of an unknown value.

Kenneth was unmarried at the time of his death and survived by nine children (the “Children”):

• Maeghan Martin (“Maeghan”);
• Joshua Hill (“Joshua”);
• Ryan Edward Dalton Burnham (“Ryan” or the “Respondent”);
• Jacob Matthew Anderson;
• Brody Kenneth Michael Hill-Beaver (“Brody”);
• Emery John Bayliss;
• Gabryella Milhim-Hill;
• Jasmine Alura Hill (“Jasmine”); and
• Jordan Austin Hill (“Jordan”).

(collectively, excluding Ryan, the “Applicants”)

On multiple occasions, Kenneth’s lawyer, John Hammond (“Mr. Hammond”), urged Kenneth to execute an estate plan and prepare a Will. Kenneth ignored Mr. Hammond’s advice. In 2010, Kenneth said that he would “take care of it” when Mr. Hammond asked him about preparing a Will. On October 16, 2019, Kenneth sent the following text message to Catherine Haggett, the mother of Jasmine and Jordan:

“Awesome! My Lawyer been after me to do a will, with me next week he been bugging me coupla [sic] years now, will take about 4 hrs, I will make Ryan and Jasmine in charge of things, Cat what I’ve built for our Family and our Kids, if all goes as planned,, will be off the charts, for many years to come and success in their schooling and business’s.”

However, Mr. Hammond never prepared a Will for Kenneth. In October 2020, Kenneth told Mr. Hammond that he had “taken care” of the Will and walked away when Mr. Hammond pressed for more information.

On January 1, 2021, Kenneth met Jerry outside of his home in the Bahamas. He handed Jerry an envelope and said, “if anything ever happens to me, give this to my lawyer”. Jerry did not inquire about the contents of the envelope, nor did he open it. Kenneth died only a few weeks later.

No one could confirm whether Kenneth had a Will, nor could his Will be located. In February 2021, Jerry located the envelope at his home in the Bahamas, and it appeared to contain a photocopy of a typewritten, unwitnessed document bearing Kenneth’s signature dated September 10, 2020 (the “Purported Will”).

The Purported Will named Ryan as the executor of the Estate and stated that Ryan was to inherit his father’s entire interest in GRE (valued at approximately $38 million). Kenneth also left bequests of $5 million to each of the Children, except Maeghan, Joshua and Brody. Kenneth left a $3 million bequest to Brody but left nothing to Maeghan and Joshua.

The Applicants challenged the validity of the Purported Will on the basis that Kenneth did not sign the Purported Will and that he did not know or approve of its contents. The issue before the Court was whether the Purported Will was duly executed pursuant to the Act, the Succession Law Reform Act (the “SLRA”) or common law.

The Act and the Indian Estates Regulations (the “Regulation”) govern testamentary matters of Indigenous persons. These statutes aim to preserve Indigenous land by preventing non-band members from acquiring the land and uphold the Crown’s fiduciary obligation to preserve the estates of reserve residents. The Minister of Indigenous Services (the “Minister”) has jurisdiction over these matters and has broad statutory powers to approve a testamentary document or render it void.

In this case, the Minister issued an Order that transferred its jurisdiction to the Court to determine the validity of the Purported Will. The Order empowered the Court to render its decision pursuant to the Act, SLRA or common law. The validity of the Purported Will hinged on whether Kenneth placed his signature on the document.

Unlike the stringent rules for Wills under the SLRA, Section 45(2) of the Act states that “[t]he Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death.”

Since Kenneth only gave Jerry a copy of the document and the original could not be located, the Purported Will did not contain Kenneth’s wet ink signature as required by the SLRA. Both the Act and Regulation are silent regarding the validity of a non-wet ink signature. The Applicants relied on the Department of Indigenous Services’ Decedent Estates Procedure Manual (the “Manual”) which states that a Will cannot be signed by electronic signature. However, neither the Minister nor the Court are bound by the Manual.

As the Purported Will did not contain Kenneth’s wet ink signature, it was unclear how the signature became affixed to the document. Forensic document examination experts testified for the Applicants and the Respondent. Both experts could not definitively conclude if Kenneth wrote the signature or how the signature was affixed to the Purported Will.

Multiple witnesses testified that Kenneth did not use computers. A third-party examined Kenneth’s electronic devices but could not locate any documents or user activity relevant to the Purported Will, any discussions regarding the creation or signing of a Will or any correspondence with estate lawyers. It was unclear how the Purported Will came into fruition.

The Respondent claimed that the Applicants had not provided a tenable theory as to how the Purported Will was created so Kenneth must have created the Purported Will. However, the Applicants were not required to establish a theory on the origins of the Purported Will. The onus was on the Respondent to prove that Kenneth indeed signed the Purported Will. The Court also noted that it was illogical for Kenneth to confine his estate planning to a single-paged document and only provide a photocopy of document to Jerry. The Court found that the Respondents had not met their onus to establish that Kenneth signed the Purported Will in accordance with s.45(2) of the Act.

Alternatively, the Court also found Purported Will was invalid under common law principles, including the doctrine of suspicious circumstances and that Kenneth knew and approved of the contents of the Purported Will. The factual circumstances surrounding the origins and production of the Purported Will were unknown. There was no evidence regarding who drafted or typed the Purported Will or how Kenneth’s signature became affixed to the document. There was no record of the Purported Will in any of Kenneth’s electronic devices. The circumstances in which Jerry received the Purported Will were also unusual. Due to the lack of evidence regarding the factual circumstances of the Purported Will, the Court found that the Purported Will was executed under suspicious circumstances, and the Respondent had not established that Kenneth knew and approved of the contents of the Purported Will.

In this case, the Court had the difficult job of balancing the principles of the Act and the formal requirements of Wills that ensure a testator intended to administer his Estate per the terms of a written document. While the Act provides some flexibility in the form of testamentary documents of Indigenous persons, the Court still has a responsibility to enforce some safeguards to protect these estates from fraud. It will be interesting to see if Parliament will amend the Act to address the validity of non-wet ink signatures and further define what constitutes a signature in consideration of this decision.