All About Estates

Estate Planning and the Indian Act

This Blog was written by: Alicia Mossington (Godin), Estate and Trust Consultant, Scotia Wealth Management


Estate planners and administrators must consider a variety of factors when assisting clients. We often speak about tax planning, insurance, and considerations for different types of assets including jurisdiction. We speak about residency for tax purposes, citizenship and typically ask where prospective executors or beneficiaries reside. Several blog posts over the past year have examined the global scale of estate planning and administration, and the impact of jurisdiction for wills, estates and trusts.

As I write this blog post on the territories of the Chippewas of the Thames First Nation, Oneida Nation of the Thames and Munsee-Delaware Nation, I consider the interaction of the Indian Act, First Nations and Canadian law which can be quite different from the intersection of foreign jurisdictions and Canadian law in relation to estate planning and administration.

“Indian” people in Canada remain governed by a distinct set of laws under the Indian Act[1] and are restricted by the Act to freely manage money, land and other property. The term “Indian” is a legal term used in the Act although when used to refer to indigenous people in Canada the word has long been considered offensive. The Act defines “Indian” to mean a person who pursuant to the Act, is registered as an Indian or entitled to be registered as an Indian. I will use the word in this article only in reference to the Act.  Not all First Nations members and not all indigenous people have the status of “Indian” under the Act.[2]

In all provinces within Canada, Indigenous Services Canada (ISC) is responsible for estate services for First Nations. Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) is responsible for estate services for First Nations in the Yukon and Northwest Territories.

Under the Indian Act, ISC or CIRNAC are only involved in the estates of people that were “ordinarily resident” on a reserve. The definition of “ordinarily resident” is broad but generally includes those who normally live on a reserve and do not maintain a residence off reserve. However, a person can be ordinarily resident on a reserve even if they were living off the reserve temporarily, for example, for education or care.[3]

To determine who should look after the estate of a person who is an Indian under the Indian Act, there are a few questions to consider:

  • Did the deceased person live on a reserve?
  • Did the deceased person have a Secure Certificate of Indian Status?
  • Did the deceased person have a Will?
  • Who are the family members of the deceased and where do they reside?

Sections 42-44 of the Indian Act govern the descent of property and give the Minister the power to appoint executors and administrators and to “carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate.”[4]

However, there appears to be some discretion in the approach of the Minister and the ISC. In at least some cases the prospective executor for an Indian person who resided on reserve applied to the Superior Court of Justice to obtain a Certificate of Appointment of Estate Trustee in the usual course, and the court did not deny jurisdiction.[5]

What about situations where a person with Indian status under the Act is married to or wishes to leave their estate (which might include real property) to a person without status under the Act?

Non-Indians who reside on-reserve are not legally entitled to “own” land on a reserve under the Indian Act. As author and lawyer Nicole Richmond[6] notes, some First Nations may offer a Certificate of Possession for homes owned by members who do not have status as Indians under the Indian Act, but this is not a regular practice in Ontario.[7]

Canada has made some effort to address the situation where a surviving spouse does not have status as an Indian under the Act by granting the spouse a statutory right[8] to make an application for half of the value of the matrimonial home, rather than inheriting from the estate of the deceased, however when the house is the principal asset and only members of the First Nation can purchase the home… the statute is of limited use.

In addition to the practical and administrative factors which must be considered by estate planners, cultural, religious, and moral beliefs should also be considered in estate planning and administration.



[1] RSC 1985, c I-5.

[2] There are many concerns with the Indian Act, the concept that the Crown has underlying title to lands, including lands on reserve, as well as race-based legislation in our legal system but these discussions are beyond the scope of this article.

[3] See also Attorney General of Canada et al v. Canard [1976] 1 S.C.R. 170 examining the definition of “ordinarily resident.”

[4] See also Indian Estates Regulations C.R.C., c. 954.

[5] Richmond, Nicole. A Brief Review of Indian Act Wills and Estate Issues (Law Society of Ontario 25th Estates and Trust Summit: Day Two, October 2022) at page 5 referencing a case she worked on and the recent Federal Court case arising out of the British Columbia Superior Court of Justice, Brooks v Canada (Indigenous Services), 2022 FC 1064 (CanLII).

[6] Richmond, Nicole. A Brief Review of Indian Act Wills and Estate Issues (Law Society of Ontario 25th Estates and Trust Summit: Day Two, October 2022) at page 6.

[7] Reserves in Ontario have no land titles system. The Crown claims to have underlying title to all reserve land and there is no fee-simple land ownership on reserve.

[8] Family Homes on Reserve and Matrimonial Interests and Rights Act, S.C. 2013, c. 20

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