The Administration of Estates under the Indian Act
In the day to day routine of our estate litigation practice, certainly I have become accustomed to working with provincial statutes such as the Succession Law Reform Act. From a constitutional perspective, estate matters, being matters dealing with "Property and Civil Rights", fall under provincial jurisdiction.
One area of estates and trusts practice which falls outside of provincial jurisdiction relates to the administration of those estates involving Canada's First Nations. The Constitution Act, 1867 designates jurisdiction to Parliament over all matters dealing with "Indians and Lands reserved for Indians." Accordingly, a status Indian who is normally resident on a reserve will be under the jurisdiction of the federal Indian Act and the Indian Estates Regulations.
There is some interplay between the jurisdictions. Section 88 of the Indian Act permits compatible provincial legislation to be incorporated by refererence. Accordingly, the administration of the estate of a deceased Indian who is not ordinarily resident on a reserve is generally referred to provincial jurisdiction. There are other situations where provincial legislation is incorporated by reference; for example, child support claims against such estates. Lastly, under section 44 of the Act, the Minister of Indian Affairs has the jurisdiction to transfer the administration of (and presumably litigation over) complex estates to provincial jurisdiction.
Until Tomorrow,
David
