The Will of an Indigenous person can be contested and found to be void in whole or in part even after the Minister of Indigenous Services approves it, if one of the factors listed in s. 46 of the Indian Act are established:

Undue influence or duress:

To prove undue influence, it must be shown that the testator was coerced into making decisions they did not truly wish to make. The testator must have felt “this is not my wish, but I must do it” (Sappier v. Canada (Indian Affairs and Northern Development)), 2007 FC 178.

Lack of testamentary:

There is a presumption that a testator had capacity if the will was properly executed. However, if there are suspicious circumstances surrounding its execution, those supporting the will must prove the testator understood:

• Their property and assets,
• Their beneficiaries,
• The provisions in the will, and
• How these elements relate to each other (Sappier).

Failure to provide for dependents:

A testator has a responsibility to provide for dependents, such as a spouse or children. If the will imposes hardship on those dependents, they may have a claim against the estate.

Improper disposition of reserve land:

The Indian Act restricts how reserve land can be transferred. A will that attempts to transfer land contrary to these rules or against the interests of a band may be void.

• Custom may also be considered in determining a band’s interests (Louie v. Canada (Indigenous Services), 2021 FC 650). In Louie, the deceased’s brother argued that Okanagan Indian Band custom prohibited transferring reserve land to a non-family member, but the court found insufficient evidence to support this claim.

Unclear or vague terms:

A will must be specific enough to allow clear estate distribution. For example:

• Unclear: “I want my land divided so that each of my grandchildren gets a share.”
• Clearer: “My land at [address] shall be divided equally among my grandchildren John, Susan, and Rebecca.”

Contrary to public interest:

A Will may be void if it includes discriminatory provisions, such as excluding children based on their spouse’s ethnicity, sexuality, or gender identity. The terms of the will are against the public interest.

If a Will is declared void, the deceased is deemed to have died intestate, and the intestacy provisions of the Indian Act apply.

If you have questions about making a Will pursuant to the Indian Act, or about contesting the Will of an Indigenous person, contact a member of our Wills & Estates team – we’re here to help.