Introduction
As discussed in the previous articles in this series, section 46(1) of the Indian Act provides conditions in which the Minister may void a will. These include:
(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.
Part I of this series discusses subsection (e), and Part III discusses subsections (d) and (f). The first three subsections—undue influence, testamentary capacity, and undue hardship—are typical conditions for most common law provinces where a court may deny probate. Under the Indian Act, the Minister and reviewing courts are instructed to look to provincial jurisprudence to guide their analyses. Section 88 of the Act affirms the legislation’s federal paramountcy over provincial legislation and indicates that any provincial legislation that does not conflict with the Act applies to registered Indians.
Undue influence
Per subsection 46(1)(a), the Minister may declare a will void where the testator was subject to undue influence. Undue influence occurs when someone exerts pressure on the testator to include certain provisions in their will or to exclude others, in a way that takes advantage of the testator’s vulnerability or weakness and causes them to act in a way that is not their own free choice. This can be a form of financial abuse or psychological abuse, and it can be perpetrated by a spouse, family member, caregiver, or anyone else in a position of trust or authority. In Sappier v. Canada (Indian Affairs and Northern Development), 2007 FC 178, Bernadette Sappier executed a testamentary instrument six days before her death in the presence of her sisters, niece, and partner Walter Sappier. Sappier lived on reserve at the Tobique First Nation. The handwritten will expressed Sappier’s intent for Regis Waloven to take control of her possessions.
Walter contested the will, claiming that he was Bernadette’s husband of more than fifty years. In actuality, Bernadette married and subsequently divorced Walter, later marrying Regis Waloven. She later returned to living with Walter, and it was not apparent to the court whether the two eventually remarried. Walter claimed that Bernadette was subject to undue influence in executing her will, and that she also lacked testamentary capacity at the time of execution.
In considering the first issue, the Federal Court looked to provincial common law jurisprudence to clarify the meaning of undue influence, stating that the burden of proof of undue influence was on the appellant, and that undue influence must show coercion, not mere persuasion. Finally, the Court noted that evidence must be direct, not circumstantial. Considering the case at bar, the Court found that the evidence Walter presented, such as the fact that the will purported to bequeath property to one of the witnesses, was circumstantial at best. The Court struck the appellant’s argument for invalidity on the basis of undue influence.
Testamentary Capacity
The Court in Sappier also considered the appellant’s argument for lack of testamentary capacity. The Court cited the test laid out in Re Schwartz, 1970 CanLII 32 (ON CA), [1970] 2 O.R. 61-84 (Ont. C.A.) aff’d (1971), 1971 CanLII 17 (SCC), 20 D.L.R. (3d) 313 (S.C.C.):
The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way
(1) the nature and extent of his property,
(2) the persons who are the natural objects of his bounty and
(3) the testamentary provisions he is making; and must, moreover, be capable of
(4) appreciating these factors in relation to each other, and
(5) forming an orderly desire as to the disposition of his property.
The Court then clarified that, as in common law probate courts, there is a presumption of testamentary capacity. Walter provided several pieces of evidence to support his argument on this front, including a letter from Bernadette’s family doctor that Walter argued showed “mental incompetence” at the time of the will execution. The Court did not accept Walter’s argument, instead deciding that the letter did not provide sufficient information as to the last time Bernadette’s doctor saw her in order to illuminate her mental capacity at the time of executing her will. The Court also cited contradictory evidence given by the Respondent regarding Bernadette’s mental state.
In Louie v. Canada (Indigenous Services), 2021 FC 650, a case discussed in Part III of this article series, the Court considered the appellant’s argument for Jimmie Louis’ lack of testamentary capacity at the time of executing his will. Under the Vavilov review framework, the Court reviewed the Minister’s determination that Jimmie did not lack testamentary capacity on a palpable and overriding error standard. Jimmie’s brother, John, argued that Jimmie lacked testamentary capacity due to his alcoholism. The Minister’s decision stated that John did not provide sufficient evidence to substantiate this claim. Jimmie responded that the Minister’s decision provided insufficient reasons, as it did not analyze his evidence in detail or explain his decision. On this point, the Court affirmed the Supreme Court’s extensive Vavilov discussion by noting that insufficiency of reasons is not an independent ground of appeal of administrative decisions.
The Court in Louie then cited sections 8.1 and 8.2 of the Interpretation Act, RSC 1985, c I-21, to define the concept of testamentary capacity by reference to the law of the relevant province, in this case, British Columbia (affirmed in Albas v Gabriel, 2009 BCSC 198). As in Sappier, the Court cited the Re Schwartz test for testamentary capacity, as well as the Wilton v. Koestlmaier, 2019 BCCA 262 decision establishing the presumption of testamentary capacity. The Court noted that it was undisputed that Jimmie suffered from alcoholism and that he died from cirrhosis of the liver. However, evidence that he continually expressed his intent not to bequeath his property to John or any member of his family demonstrated to the Court that he had testamentary capacity when making a will.
Undue hardship
The recent decision Brooks v. Canada (Indigenous Services), 2022 FC 1064 is discussed in Part II of this series. In Brooks, the testator, Samuel Joseph Paul, included a clause in his will explicitly disinheriting two of his estranged daughters, Debra and Brenda. The government had taken Debra and Brenda from Paul’s care when they were infants and placed them in foster care. They remained wards of the Crown until reaching adulthood. In his disinheritance clause, Paul claimed that Brenda was not dependent on him and was financially self-sufficient. In her appeal, Brenda claimed that, as she is permanently disabled and dependent on government assistance, Paul’s statement is inaccurate. Brenda argued that the terms of Paul’s will would cause her undue hardship. The Federal Court has returned this decision to the Minister for redetermination, and as of December 2022, the case has not been decided.
The case Poitras v Khan, 2016 SKQB 346 is discussed in Part III of this series in relation to the conflict between federal and provincial wills and estates laws. In this appeal, Khan also argued that his wife’s will, which she executed before their marriage and therefore did not provide for him, would also cause him undue hardship. Khan argued that he was a dependent of his wife, Sharon Poitras. The Court noted that Khan’s personal estate was worth several hundreds of thousands of dollars, and therefore he was not at real risk of undue hardship. Moreover, the Court noted that, because Khan’s property interests were protected by two pieces of provincial legislation, The Family Property Act and The Dependant’s Relief Act, his interests remained protected. Poitras shows that, under subsection 46(1)(c), appellants must be able to show that a testator’s lack of provision for them would actually cause them undue hardship, and that they have no other recourse.
Conclusion
This series of articles discussed will execution and invalidation for Indian Act estates. The Indian Act is a federal law that applies to registered Indians in Canada and sets out certain rights and responsibilities with respect to their status as Indians. If a will is being executed as part of the administration of an Indian Act estate, the general rules for will execution set out in the applicable provincial or territorial laws will apply, subject to any specific provisions of the Indian Act, including varying execution and invalidity conditions.
While the execution requirements for Indian Act wills are much more flexible than provincial probate laws, certain conditions allowing a Minister to void a will—such as a testator’s capricious disposal of their property—are unique to the laws governing status Indians. Estate attorneys, planners, personal representatives, and Aboriginal testators should be mindful of the specific criteria for voiding an Indian Act will in order to protect and best dispose of the property of the deceased per their testamentary wishes.
