The Minister of Indian Affairs and Northern Development has the quasi-judicial authority to make decisions related to a deceased Indian’s estate and to act as the administrator of last resort, similar to a provincial Public Guardian and Trustee.
In practice, the estate is handled by the department officials at the regional level, although certain decisions are made by the Deputy Minister in Ottawa. The Minister also has the authority to transfer authority to a provincial superior court.
When a dispute arises in the administration of the estate of a Status-Indian, the Indian Act applies when the dispute is of a matter and cause testamentary and the deceased Status-Indian was “ordinarily resident” on reserve or Crown land.
“Ordinarily resident” does not mean that the deceased had to have been living on a reserve at the time of death; it is enough that he or she normally resided on the reserve.
However, in most cases, Indian and Northern Affairs Canada will consider that an individual living off reserve at the time of death was not ordinarily resident on reserve.
In the absence of obvious on-reserve residency, all of the material circumstances will be taken into consideration, including whether the deceased intended to live on reserve.
For example, if a deceased was living off reserve at the time of death for the purpose of obtaining medical treatment, to further his or her education, or to obtain employment, but at all times intended to return to the reserve to live, Indian and Northern Affairs Canada would likely, but not necessarily, find that he or she was “ordinarily resident” on a reserve at the time of death. This decision is normally made by a case officer at the regional level.
In the case of Nisga’a citizens, and treaty first nation members, Part 2, Division 3 of the Wills, Estates and Succession Act sets out additional requirements for an applicant to obtain probate or administration grants.
For more information, see Estates of First Nations Persons.