Wills and Estates Presentation for Status Indians residing on reserve. For Legal information only, not legal advice.

1. Mi’kmaw
Wills & Estates
PRESENTED BY: ANGELINA AMARAL, BARRISTER AND SOLICITOR
ANDREW JOHN, ARTICLING CLERK
DATE: JANUARY 25, 2017
The Confederacy of Mainland Mi’kmaq

2. OVERVIEW
• What is a Will?
• Role of INAC.
• Role of the Executor.
• Laws that affect Wills.
• How to write a Will.
• How a Will is challenged.
• Other Estate planning tools.
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3. What we can and
cannot do…
This Session CAN:
•Provide you with information on how to
write a Will.
•Give you information about general
issues and common practices when
making a Will for a Status Indian who live
on reserve.
We CANNOT:
•Provide you with legal advise on your
specific situation.
•Write your Will for you.
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4. Who this Guide
Applies to…
This guide provides information on how to write a Will
for Status Indians who Ordinarily Reside on
Reserve.
Do NOT use this guide if you are:
1) A Status Indian living off reserve; or
2) A non-Status Indian living on reserve.
In these situations the Wills Act of Nova Scotia may apply.
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Status Indian: A person
who is registered as an
Indian, in accordance
with the Indian Act
(Canada).
Ordinarily a Resident on
Reserve: Is when a
person habitually makes
the reserve their home. A
person who must spend
time in a hospital or
prison; or leaves the
reserve in order to
attend school, work, to
go hunting or to serve in
the military; or lived off-
reserve for most of their
life, but moved to the
reserve and was living on
the reserve at the time of
death may still be
“Ordinarily a Resident on
Reserve”.

5. WHAT IS A WILL?
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A Will:
• Is a written or typed
document.
• Must be signed and dated by
you.
• Gives away your property to
people you have chosen.
• Comes into effect once you
have died.

6. 7 things a Will can do
for You…
Having a Will allows you to:
• Choose your Executor;
• Choose your Beneficiaries;
• Choose who will care for
your Child(ren);
• Prevent conflicts;
• Lessen the involvement of
INAC;
• Settle your Estate quickly;
and
• Protect your history, culture
and traditions.
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Executor: The person or
corporation named in a
Will to carry out the
instructions in the Will.
More than one Executor
can be named in a Will.
Beneficiary: A person or
organization named in a
Will, an insurance policy
or at provincial law to
receive a gift or money
after a person dies.
Child: Includes a legally
adopted child and a child
adopted in accordance
with Mi’kmaq custom.
Estate: Any property the
deceased owned at the
time of death.

7. ROLE OF INAC
The Minister has exclusive jurisdiction over
the Estates of Status Indians who live on
reserve.
The Minister must be notified when a Status
Indian who ordinary resides on reserve.
Once INAC has been notified of the death,
the Department must:
• Determine jurisdiction over the
Estate.
• Approve the Will.
• Appoint the Executor or Administrator
to settle the Estate.
• Resolve any complaints from
Beneficiaries and Heirs.
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8. EXECUTOR
• Is the person you name to carry
out the instructions in you Will.
• Can be a relative or organization.
• Can be someone who inherits a
gift through your Will.
• Should be someone you trust who
is able to read and sign the
documents that must be processed
after your death.
• Should be someone who can
handle responsibility, is in good
health, has presence of mind and
willing to settle your affairs in the
way you want.
Duties Include:
• Locate your Will and
Assets.
• Make a list of Assets.
• Gather names and
addresses of all
Beneficiaries.
• Pay your debt.
• Distribute gifts to your those
you identified in your Will in
the way you wanted.
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9. Laws that affect may
Mi’kmaq wills & Estates
The Indian Act
• Sets out the rules for making a Will.
• Order of Priority for identifying Heirs.
• Limits the transfer of lands on reserve.
Matrimonial Real Property (MRP) laws of the
Band
• Can delay the distribution of the Estate.
• Leaves the division of property upon death to
the Indian Act.
Family Homes on Reserves and Matrimonial
Interests or Rights Act (FHRMIRA)
• Affects how the family home and other
matrimonial property are divided after death.
• Can delay the distribution of the Estate.
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10. WHAT HAPPENS IF YOU
DO NOT HAVE A WILL?
If you do not have a Will at the time of your death, the law will declare that you
have died Intestate.
Estates worth less then $75,000.00 will be given entirely to the Surviving Spouse.
Estates worth more then $75,000.00 are distributed according to the following
conditions:
• The Surviving Spouse will receive the first $75,000.00.
• Anything left, is divided amongst the Surviving Spouse and any children of
the deceased.
• If the deceased left one Child, then half of the remainder shall go to the
Survivor and the other half to the Child.
• If the deceased left more than one Child, one third of the remainder shall
go to the Survivor and each Child shall receive an equal share of the
remainder.
• If a Child of the deceased has died but has left children of his or her own
(grandchildren of the deceased), then those grandchildren are entitled to
receive the same portion that their parent would have received.
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11. INAC Custom Adoption
Requirements
1)The Custom Adoption is entered
into voluntarily.
2)The band has a recognized custom
for transferring the primary care and
responsibility of a child to another.
3)Elders from the community can
confirm the custom.
4)The band whose custom is being
used supports the custom adoption
by Band Council Resolution (BCR).
Indian Act
Order of priority
If you die without a Will the Indian Act sets out an Order of Priority for those who
are entitled to inherit your Estate.
First to be considered are immediate family members:
• The Surviving Spouse or Common Law Partner;
• Biological children, including those born out of wedlock;
• Adopted children (Legally Adopted or Custom Adoption); and
• Grandchildren and great-grandchildren.
If you die without any immediate family members the
next group of Heirs entitled to inherit are:
• Parents of the deceased;
• Brothers and sisters;
• Nieces and nephews;
• Grandparents; then
• Aunts and uncles of the deceased.
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12. Distribution of Estate (s 38)
An Executor must NOT distribute Assets of
an Estate until one of the following has
been done:
• The Survivor consents in writing to
the proposed distribution.
• 10 months after the date of death,
including any extension period
granted by the court, and no s 36(1)
application has been made.
• An application made under s 36(1)
is finished.
Variation of Amount (s 35)
An Executor can apply to a court to change
the amount owed to the Survivor when:
• The spouses or partners already
resolved the issue by agreement or
court order; OR
• The amount to be paid would be
unjust (children would not be
adequately provided for).
DOES FHRMIRA APPLY
TO YOUR BAND?
Survivors Choice under FHRMIRA
•FHRMIRA only applies to the family home and other
matrimonial interests. A Surviving Spouse or Common Law
Partner can chose to divide MRP under FHRMIRA, and
inherit other personal items from a Will or under the Indian
Act. (FHRMIRA, s 37)
•A Surviving Spouse or Common Law Partner (including
non-band members) has an automatic right to occupy the
family home for up to 180 days. (FHRMIRA, s 14)
•The Surviving Spouse or Common Law Partner (including
non-band members) may apply to receive half the value of
the deceased’s interest in the family home and other
matrimonial interests and rights on reserve lands.
(FHRMIRA, s 34)
NOTE: FHRMIRA only applies to Bands that have not
passed MRP laws.
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13. CMM MEMBER BANDS
MRP LAWS
These laws apply to Spouses and Common Law
Partners and applications must be made to the NSSC
• Common Law Partner – when two people live in a
marriage-like relationship for at least one year; or
live together and have a child together. (s 2)
• Land is for the exclusive use and benefit of the
band members. (Preamble)
• Only people who are Indian Status and are band
members have a right to live on or possess band
lands or structures. (s 3(10))
• Everyone has the right of occupation to the family
home for up to 180 days. (s 6(3))
• Time can be extended by a court (s 8(2)) for up to
90 days and renewed for up to one year. (s 8(4))
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2017 List of Bands with
MRP Laws in Nova Scotia:
•Pictou Landing FN
•Millbrook FN
•Bear River FN
•Paqtnkek Mi’kmaw
Nation
•Sipekne’katik FN
•Membertou FN
A First Nation can write MRP
laws at any time.Once a First
Nation has passed a MRP
law, the Band’s law and not
FHRMIRA will apply to the
matrimonial property located
on the reserve. A band can
legislate different provisions
for the division of MRP on
reserve lands.

14. Division of Real Property upon death In
accordance with the Indian Act. (s 17)
• Band land cannot be transferred to a
non-band member.
• If a CP is left to a non-band
member, the property will sold to the
highest bidder among band
members. The money received will
be given to the non-band member
Beneficiary.
• If the CP is not sold within six
months, the Minister may give the
CP back to the band, at no cost; and
decide whether or not to
compensate the non-band member
for the CP.
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15. WRITING
A WILL

16. DO YOU NEED A
LAWYER?
You do not need a lawyer to
write your Will
BUT it may be a good idea to hire a lawyer to
write a Will for you if:
You own a business.
You are in the process of a divorce or
marriage.
You own property off reserve.
You want to leave assets to or establish a
trust for children who are under 19 years of
age.
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17. REQUIREMENTS FOR
A VALID WILL
In order for a Will to be Valid under the
Indian Act:
• You must be at least 19 years old and
sound of mind;
• It must be a written or typed document;
• Signed and dated by you; and
• Gives away your Property and Assets
to specific people or organizations
upon your death.
Witnesses
• A Will for a Status Indian living on
reserve does not need to be
witnessed.
• In order to avoid disputes, two people
should witness your Will.
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18. WRITING A WILL
Generally, when writing a Will you should :
1)State you are writing your Last Will &
Testament; insert your legal name, address and,
any nicknames.
2)State that you cancel or revoke all previous
Wills and Codicils.
3)State the name of the person you want to act
as your Executor. Name an alternate.
4)State that you want your Executor to pay all of
your debts, funeral and Testamentary Expenses
out of the Assets of the Estate.
5)Identify your Property and name the person or
organization you wish to gift the item to.
Example 3
I appoint [LEGAL NAME], of
[ADDRESS], as Executor of my
Will. If he or she is unable or
unwilling to act, I appoint
[LEGAL NAME], of [ADDRESS],
as Executor of my Will.
Example 1
This is the Last Will and
Testament of me, [YOUR
LEGAL NAME] (NICKNAME), of
[ADDRESS].
Example 2
I HEREBY REVOKE any former
Wills and Codicils and other
testamentary dispositions that
I have made.
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19. THIS IS THE LAST WILL AND TESTAMENT of me, [LEGAL NAME], of
[ADDRESS], in the Province of Nova Scotia.
REVOCATION
1.I HEREBY REVOKE any former Wills and Codicils and other testamentary
dispositions that I have made.
APPOINTMENT OF EXECUTOR OR EXECUTRIX
2.I APPOINT [LEGAL NAME], of [BAND NAME], in the Province of Nova Scotia, to
be the Executor and Trustee of my Will. IF [LEGAL NAME of first EXCUTOR] should
die before me, or is unable or unwilling to act as my Executor and Trustee, then I
APPOINT [LEGAL NAME], of [AREA of RESIDENCE], in the Province of Nova
Scotia, to be the Executrix and Trustee of this my Will.
DEBTS
3.I DIRECT that my Executor pay all my just debts, funeral and testamentary
expenses, death taxes, and all related expenses as soon as is convenient after my
death.
DISTRIBUTION OF PROPERTY
4.I DIRECT MY EXECUTOR TO DISTRIBUTE all of my assets and property as
follows:
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20. GIVING AWAY
PROPERTY IN A WILL
Property in a Will can be distributed under two categories:
1) Specific Gifts
• A specific items of Property (sum of money, land or a defined group
of items; my coin collection) given to a named Beneficiary.
• If it is not clear to your Executor who the Beneficiary of a specific
gift is, the gift must be placed in the Residue of your Estate.
1) Residue
• All the items not specifically gifted and gifts that could not be given
away.
• Is distributed according to the instructions in a Residue Clause.
• NO Residue Clause: Assets will be distributed according to the
Intestate provisions of the Indian Act.
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21. WHAT IS YOUR
PROPERTY?
The following are non-exhaustive lists of Assets you may
own:
Real Property, may include:
•Land
•Buildings
•Permanent structures attached
to the land
•Improvements to the land
Personal Property, may include:
•Household goods
•Vehicles
•Jewelry
•Business equipment
•Cultural items
•Leaseholds
•Shares
•Stock certificates
•Legal settlements or judgment awards
•Patents
•Trade marks
•Computer programs you create
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22. LIMITS ON
INHERITANCE AND
OWNERSHIP
Band owned or guaranteed homes
• Cannot be given away in your Will.
• You may write a request to the Band Council asking that the
home be passed on to another family member who is a band
member.
• The Band Council does not have to comply with your request
and the house can be allotted in accordance with the band’s
Land Code, policies, customs or traditions.
Example
I am aware that the house I live in is a band-owned home, but I would like to
request that Chief and Council allow my grandchild, [LEGAL NAME] to take over
living in my house located at: [ADDRESS].
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23. Certificate of Possession (CP)
• Can be transferred to someone through your Will.
• Can only be transferred to a Status Indian who is a
band member.
• The transfer is handled by INAC.
The Indian Act sets out the rules and limits for
giving a CP in a Will.
• A CP cannot be transferred to a non-band member.
• If a CP is left to a non-band member, the property
will be sold to the highest bidder among band
members.
• The money received will be given to the non-band
member Beneficiary of the CP.
• If the CP is not sold within six months, the Minister
may give the CP back to the band, at no cost; and
decide whether or not to compensate the non-band
member for the CP.
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24. IDENTIFYING
PROPERTY IN A WILL
You should consider the following:
1)Write a clear description of each item you want
to give away. Describe particular features of the
item that set it apart, and clearly identify who you
want to receive the gift.
2)Sometimes it is better if you are not too specific
about items in your Will.
3)Specific gifts can also include cash gifts.
 Property that can not be clearly identified
and given away is placed in the Residue.
Example 1
I give to my daughter, [LEGAL
NAME] of [ADDRESS], my
Mi’kmaq sweetgrass basket
with the turtle design on the
top of the cover.
Example 3
I give $1,000.00 to my son,
[LEGAL NAME], of [ADDRESS].
Example 2
I give the primary vehicle I
drive, at the time of my death,
to my son, [LEGAL NAME] of
[ADDRESS].
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25. DISTRIBUTION OF PROPERTY
4.I DIRECT MY EXECUTOR TO DISTRIBUTE all of my assets and property as
follows:
a) Specific Gifts –
i. To give the primary vehicle, I own at the time of my death, [LEGAL
NAME], of [ADDRESS], if they survive me for a period of 30 days. If
my beneficiary fails to survive me, this gift shall fall into the residue of
my estate.
i. To Pay and transfer the sum of $5,000.00, to [LEGAL NAME], if they
survive me for a period of 30 days. If my beneficiary fails to survive
me, this gift shall fall into the residue of my estate.
a) Residue – To divide the residue of my estate into two equal shares and
distribute them as follows:
i. Fifty percent (50%) - to [LEGAL NAME], of [ADDRESS], in the
Province of Nova Scotia, if they survive me for a period of 30 days,
for their own use, absolutely; and
i. Fifty percent (50%) – to [LEGAL NAME], of [ADDRESS], Province of
Nova Scotia, if they survive me for a period of 30 days, for their own
use, absolutely.
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26. In the event that [LEGAL NAME], or [LEGAL NAME], should predecease me, or
die within 30 days of my death, I direct my Executor to divide that share among the
beneficiaries children in equal shares. If any of my children should predecease me
leaving no children, my Executor shall pay or transfer that child’s share to his or
her surviving sibling.
GUARDIANSHIP
5.I APPOINT [LEGAL NAME] and their partner, [LEGAL NAME] (“nickname”), or
the survivor of them, to be the guardians of any minor child of mine who are alive
at the time of my death.
IN WITNESS WHEREOF I have subscribed my name to this my Last Will and
Testament, this ____ day of __________, 20____.
_____________________________________
[LEGAL NAME of TESTATOR]
We the witnesses were present at the request of [LEGAL NAME of TESTATOR]
when they signed their Last Will and Testament. We then signed as witnesses in
their presence and in the presence of each other.
_______________________ ________________________
[LEGAL NAME of WITNESS] [LEGAL NAME of WITNESS]
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27. CHANGING A WILL
You can make changes to your Will at any
time. There are two routes you can take
when that time comes:
1. A Codicil - allows you to add to, change
or delete certain aspects of your Will.
2. A new Will – If your are making
significant changes to your Will (e.g.
changes to Residue), this is the best
route to take.
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28. GROUNDS TO
CHALLENGE A WILL
A Will or part of a Will can be declared Void in
the following circumstances:
1)You did not have Testamentary Capacity when
making your Will.
2)You did not make the Will of your own free will.
• You were threatened or under Duress; or
• You were pressured into making it or under
Undue Influence.
Void: Not valid or legally
binding.
Testamentary Capacity:
The legal requirement
that a person making a
Will must be of sound
mind and memory,
knows the extent of their
property, and
understands the effects
of the Will.
Duress: Threats or other
means to cause a person
to do something against
his or her will.
Undue Influence: When
a person takes advantage
of a position of power
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29. 3) You have not provided for a Child or
person that was financially dependant
on you or that you were responsible for.
4) Your Will is unclear or confusing.
• Your Will states: “I give my car to my
neighbour,” without giving the name of
your neighbour.
3) You have set out terms in your Will that
are against public policy.
• Your Will states: “I give half of my
Estate to my son, James, but only if
he marries a woman.”
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30. OTHER ESTATE
PLANNING TOOLS
Power of Attorney
Enduring Power of Attorney
Personal Directive
Burial Instructions
Medical Assistance in Dying
The Criminal Code of Canada
(RSC, 1985, c C-46) now
includes a provision allowing
for medical assistance in
dying (s 241.2). Because of
some of the limits and safe
guards in placed around this
provision it is unknown, at
this time, if someone can add
a term for Medical Assistance
in Dying in their PD.
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31. QUESTIONS
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Andrew JohnAngelina Amaral