This blog was written by Andrew Ashenhurst, TEP – Associate Estate and Trust Consultant with Scotia Wealth Management
A close friend of mine is actively involved in the Aboriginal space from both an economic and social development perspective. In his work he has often reached out to me with respect to Estate/Trust & incapacity planning topics. Through research and educating each other, I’ve learned of some interesting differences that exist when a Status Indian is involved from an estate planning perspective.
Indian is the legal identity ascribed to an Indigenous person who is registered under the Indian Act or entitled to be registered as an Indian under the Indian Act.
There are rules that apply specifically to reserve property and ones that only apply to Status Indians living on reserve and they are governed by the Act. Here are a few:
Powers of Attorney:
When a Status Indian is deemed incapable, it is the Minister of Indian Affairs and Northern Development that has the exclusive authority to manage the property of that individual.
The will of a Status Indian does not have to comply with the formalities of the legislation of the province in which he or she resides at the time of their death. Sec 45(2) states that ‘The Minister will accept as a Will any written instrument signed by an Indian in which he indicates his wishes or intention to dispose of his property on his death’.
You may only transfer real property that is located on a reserve to a person who is entitled to live on the reserve.
Under the provisions of the Indian Act (Sec. 48) there is a different intestacy distribution formula then under provincial legislation. For example, if the value of the estate is under $75K, the surviving spouse or common law spouse, will inherit the entire estate.
While the Indian Act does not contain specific provisions for dependents relief claims, Sec. 46 (c) does contain a method whereby the Minister of Indian Affairs & Northern Development may determine the will, either in whole or in part, is void, ‘if the terms of the Will would impose hardship on persons for whom the testator had a responsibility to provide.’
As you can see, there can be some notable differences in how the estate of a Status Indian is planned for or administered, so careful consideration (and of course, proper legal advice) should be taken.