Mikmaw wills and estates jan.2017

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

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.

The Confederacy of Mainland Mi'kmaq 2

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.


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.


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”.

WHAT IS A WILL?


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.

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.


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.

ROLE OF INACThe 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. The Confederacy of Mainland Mi'kmaq 7

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.


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.


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.


INAC Custom Adoption Requirements1)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 priorityIf 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.


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 FHRMIRAFHRMIRA 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.


CMM MEMBER BANDS MRP LAWSThese 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))


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.

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.


WRITING A WILL

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.


REQUIREMENTS FOR A VALID WILLIn 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.


WRITING A WILLGenerally, 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 3I 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 1This is the Last Will and Testament of me, [YOUR LEGAL NAME] (NICKNAME), of [ADDRESS].

Example 2I HEREBY REVOKE any former Wills and Codicils and other testamentary dispositions that I have made.


THIS IS THE LAST WILL AND TESTAMENT of me, [LEGAL NAME], of [ADDRESS], in the Province of Nova Scotia.

REVOCATION1.I HEREBY REVOKE any former Wills and Codicils and other testamentary dispositions that I have made.

APPOINTMENT OF EXECUTOR OR EXECUTRIX2.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. DEBTS3.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 PROPERTY4.I DIRECT MY EXECUTOR TO DISTRIBUTE all of my assets and property as follows:


GIVING AWAY PROPERTY IN A WILLProperty 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.

2) 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.


WHAT IS YOUR PROPERTY?The following are non-exhaustive lists of Assets you may own:

Real Property, may include:LandBuildingsPermanent structures attached to the landImprovements to the land

Personal Property, may include:Household goodsVehiclesJewelryBusiness equipmentCultural itemsLeaseholdsSharesStock certificatesLegal settlements or judgment awardsPatents Trade marksComputer programs you create


LIMITS ON INHERITANCE AND OWNERSHIPBand 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].


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.


IDENTIFYING PROPERTY IN A WILLYou 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 1I give to my daughter, [LEGAL NAME] of [ADDRESS], my Mi’kmaq sweetgrass basket with the turtle design on the top of the cover.

Example 3I give $1,000.00 to my son, [LEGAL NAME], of [ADDRESS].

Example 2I give the primary vehicle I drive, at the time of my death, to my son, [LEGAL NAME] of [ADDRESS].


DISTRIBUTION OF PROPERTY4.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.

b) 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.


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]


CHANGING A WILLYou 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.


GROUNDS TO CHALLENGE A WILLA 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 over another person.


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.

5) 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.”


OTHER ESTATE PLANNING TOOLS

Power of AttorneyEnduring Power of AttorneyPersonal DirectiveBurial Instructions

Medical Assistance in DyingThe 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.


QUESTIONS


Andrew JohnAngelina Amaral

Mikmaw wills and estates jan.2017

Law

Transcript of Mikmaw wills and estates jan.2017