Voiding a Will Under the Indian Act (Part II): Procedural Elements

Voiding a Will Under the Indian Act (Part II): Procedural Elements

Seth Gordon
October 12, 2023

As discussed in Part I, estate administration under the federal Indian Act is different from provincial wills and estates legislation. Part II discusses the procedural elements of will voidance, including issues with jurisdiction and judicial review and the difference between will execution approval and will contests. Part III analyzes Indian Act wills through a pluralistic lens, looking at the interaction between provincial legislation and Indigenous legal traditions, including the requirement for wills to be devised in the interests of the Band pursuant to tribal custom. Finally, Part IV delves into more conditions under which the Minister may void a will, including undue influence, testamentary capacity, undue hardship, and capricious will devises.

Wills Approved by Administrative Agents, Not Probated by Courts

The execution formalities and conditions under which either the Minister of Indigenous Services Canada (ISC) or Crown-Indigenous Relations and Northern Affairs (CIRNAC) may void a will are unique to the specific history of Crown-Indigenous relations in Canada. The services provided by ISC and CIRNAC include estate planning, estate administration, and estate dispute resolution. These services are designed to help First Nations protect the interests of their members and ensure that their estates are managed in a respectful, effective and efficient manner. ISC and CIRNAC also provide legal advice and support to First Nations concerning estate matters. This includes providing guidance on the interpretation and application of the Indian Act, and any other relevant laws, regulations, and policies that apply.

Because the property of registered Indians is under federal jurisdiction of two executive departments, it is an administrative decision-maker, not a court, who may approve a will. Section 47 of the Indian Act prescribes a statutory mechanism for appellate review where individuals may appeal a Minister’s decision to Federal Court. It is up to the Minister’s discretion to approve an appeal of their decision. The Minister also has discretion to transfer jurisdiction over a will application to a provincial court, and may refer a question arising from the will to a court. If the Minister transfers a will to provincial court, the court will probate the will pursuant to typical provincial probate regulations, not Indian Act requirements.

Per the Supreme Court’s recent 2019 overhaul of the standard of review in Canada (Minister of Citizenship and Immigration) v. Vavilov, an appellate court will review the Minister’s decision using the appellate standard. Courts review questions of law on a correctness standard, and questions of fact or inextricable mixed fact and law on a standard of palpable and overriding error, the most deferential to administrative bodies. In other words, when an individual challenges the Minister’s decision over whether to approve or void an Indian Act will, the reviewing court will only review the decision for a clear and fatal error, not merely whether the court would have arrived at a different result. A decision may even be unreasonable as long as it does not contain obvious and irreconcilable mistakes. Issues with the standard of review and procedural fairness in Indian Act will applications have remained a consistent issue in the jurisprudence. Two decisions—one decided before and one after Vavilov—examine procedural hiccups in Indian Act will contests.

Thorne: Minister Approval and Invalidation of Wills

The 2017 appeal in Thorne v. Canada, 2017 FC 1116 (CanLII) explores the difference between will approval under section 45 of the Act and will voidance under section 46. The conditions under which the Minister may do each is different. These sections read:

Indians may make wills
45 (1) Nothing in this Act shall be construed to prevent or prohibit an Indian from devising or bequeathing his property by will.
Form of will
(2) The 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.
(3) No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate thereof pursuant to this Act.
Minister may declare will void
46 (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that
(a) the will was executed under duress or undue influence;
(b) the testator at the time of execution of the will lacked testamentary capacity;
(c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;
(d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;
(e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or
(f) the terms of the will are against the public interest.

Eugene Thorne was a registered Indian pursuant to the Indian Act living on Cowichan Indian Reserve in southern British Columbia. He was a father to three children. Before his passing, he wrote two wills: one in 2002, in which he left all his possessions to his son William Thorne and named him executor; and another in 2011, in which Thorne received nothing. The beneficiaries of Eugene’s 2011 Will included his other two children. Eugene wrote the 2011 Will eight months after suffering a stroke that left him partially disabled and in need of daily physical assistance. 

When he died, William contested the will before the Minister of INAC on the basis of duress, undue influence, testamentary capacity, and hardship. He petitioned the Minister to transfer jurisdiction to the Supreme Court of British Columbia. The Minister refused to transfer jurisdiction, claiming William submitted no evidence of undue influence or the possibility of undue hardship. In contrast, the Minister countered that other beneficiaries under Eugene’s 2011 Will had submitted evidence supporting his testamentary capacity, including an affidavit by Eugene’s doctor that Eugene possessed testamentary capacity at the time of signing his will. William submitted evidence in response highlighting his father’s aphasia and inability to communicate. The Minister approved Eugene’s 2011 Will. The Minister claimed that William’s evidence was premature, because it related to will voidance under section 46 of the Indian Act, rather than will approval under section 45. The Minister continued that the evidence factors under section 46 were unnecessary unless he approved the will. William appealed the decision to Federal Court.

On review, the Court considered two questions: Did the Minister misunderstand the applicable law, and in particular, the basis for approval of a will under section 45 of the Indian Act?

Did the Minister breach a duty of procedural fairness to the Appellant by refusing to refer the matter to the Supreme Court of British Columbia?

William argued that Minister ignored common law rules, as affirmed by the Supreme Court’s Dunsmuir review framework (a precursor to Vavilov; the Court incorporated common law rules as a necessary consideration in an administrative review in the new analysis). William then argued that section 45 of the Indian Act created an obligation for the Minister to assess the true intention of the testator prior to approving an Indian’s will, including testamentary capacity. The Court concluded that section 45 approval only considers testamentary intent (an instrument that clearly expresses a testator’s testamentary wishes). Section 46, on the other hand, considers testamentary capacity as a possible reason for voiding a will. Because these two processes are distinct, the Court found that the Minister’s decision was reasonable.

The Court also found that the Minister did not deny William his right to procedural fairness by denying his request to transfer jurisdiction to the superior courts. Section 44(2) of the Act provides the Minister with the discretion to approve a request to transfer jurisdiction. It does not obligate the Minister to approve any request. Thorne exemplifies the distinct way in which registered Indians navigate administrative justice in matters of succession, whereas non-Indians have access to justice in the courts.

Brooks: Issues of Jurisdiction

In Brooks v. Canada (Indigenous Services), 2022 FC 1064 (CanLII), the Federal Court referred the decision of whether to approve a will back to the Minister for reconsideration. As of December 2022, the Minister has yet to make a final decision on the merits. The Court’s judgment discusses several issues, including its growing understanding of the appellate standard of review post-Vavilov, jurisdiction pursuant to section 47 of the Act, and the meaning of the “vague, uncertain or capricious” condition for voiding a will under section 46(1)(e).

Samuel Joseph Paul, a member of the Shuswap Indian Band and living on reserve land, was  married to Mary Pauline Paul, who predeceased him. Together, they had five children: Debra Davis (born 1961), Brenda Brooks (born 1963), Samuel Thomson (born 1965), Arlene Hunter (born 1969), and Betty Burgoyne (born 1971). Samuel Thomson was apprehended at birth in October 1965 by Child Welfare and was subsequently adopted. He never lived with his biological family. Brenda and Debra were apprehended in December 1967 by Child Welfare, removed Samuel and Mary’s custody, and placed into foster care. Brenda was a few weeks shy of her fourth birthday when this occurred. After 1967, Arlene and Betty were born, and eventually raised by their biological parents.

For most of her childhood, Brenda was raised by the same foster family. Her biological parents did not attempt to contact her during her childhood or regain custody. They did not consent to her legal adoption by her foster parents until she was 17 years old, close to the age of legal adulthood. Ultimately, Brenda was never adopted, remaining a permanent ward of the Crown for almost her entire life until becoming an adult. Well into adulthood, Brenda tried to re-establish a relationship with her parents, but they rebuffed her.

Samuel Joseph Paul devised a will in 2017 and died in 2019. After finding out about the Will, Brenda challenged its validity on the bases that  (1) its terms imposed hardship on Brenda, for whom Samuel had a responsibility to provide; (2) its terms were so vague, uncertain, or capricious that proper administration and equitable distribution of Paul’s estate would be difficult or impossible to carry out; (3) she also requested to transfer jurisdiction over the will to the British Columbia Supreme Court pursuant to section 44 of the Act.

In his 2017 Will, Samuel Joseph Paul instructed that his Will should be distributed equally to his wife, son, and two youngest daughters whom he raised. His Will specifically disinherited Brenda and Debra. In a clause of the Will, Samuel stated his belief that the daughters had adequate means to support themselves, were not reliant on him for support, and at a young were taken from his care, became wards of the state, and were subsequently adopted by other parents. Samuel claimed that, as a result, he had no further legal rights, obligations, or duties with respect to them.

Brenda contested the Will under section 46(1)(c) and (e) (undue hardship and vague, uncertain, and capricious terms), rebutting Paul’s statements. Brenda claimed that she was permanently disabled, unable to properly provide for herself, and that, contrary to Paul’s statements, was never adopted by other parents. She also noted, in support of the second condition, that Paul did not disinherit his son, who had been a ward of the Crown, only his two oldest daughters.

The Court reviewed the Minister’s decision to deny Brenda’s application on the standard of overriding and palpable error. The Court found that the Minister ignored Brenda’s application under section 46 of the Act. The Court also cited the ISC policy stating that the Minister should consider transferring jurisdiction of the will to the Superior Court when “the estate has demonstrated high level of conflict that has arisen amongst the heirs/beneficiaries that may be better placed in a court setting for resolution.” In conclusion, the court showed deference in referring the decision back to the Minister in light of its findings, instead of conducting a de novo review of the case on its merits. 

Where To Go From Here

The Vavilov standard of review framework is having ripple effects in all areas of administrative justice, including property and succession matters for registered Indians under the Indian Act. The new standard is highly deferential to the discretion of the Minister, showing that many invalid wills may pass muster if the Minister decides to approve (or deny voiding) them in a reasonable, if not correct, manner. For applicants looking to challenge patently unfair or improper wills, the possibility of judicial review can be even slimmer than their non-Indian counterparts. 

The next article in this series will look at substantive, rather than procedural, issues of legal pluralism: where the Minister must consider other relevant sources of law, including provincial legislation and Indigenous customary law.

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