Aboriginal will-making

Subject classification: this is a law learning projects resource.

Educational level: this is a research resource.

The creation of a will is an important tool for Aboriginal peoples as it permits the individual to determine how their estate (e.g. tangible and intangible property, customary knowledge, cash etc.) will be divided after their death.^[1] In many areas of the world, Aboriginal peoples lack access to justice and are thereby unable to create wills. This may be due to a variety of reasons, including: remote location, lack of lawyers or notaries, and insufficient resources and knowledge about requirements.

A will is an important tool to avoid intestacy. Where there is no will, States apply rules to deal with the deceased person's property and to make other decisions. In some cases, these rules may deprive those who are not immediate family from any inheritance of the deceased's estate, in addition to resulting in other unfavourable circumstances (e.g. the wrong individual may inherit, intestacy may make burials disputes difficult to settle, and it may not address complex customary law issues).^[2] Some States attempt to make intestacy rules fit better with Aboriginal persons and community expectations. In Australia, Queensland, Western Australia and the Northern Territory have specific rules for Aboriginals who die without a will. Canada also has intestacy legislation that applies to Aboriginals who fall under the Indian Act.^[3] However, these rules have each been criticized as being based on assumptions or myths about customs and values.^[4]

To grant greater power to the testator, will-making is recommended and it may be undertaken by any Aboriginal person subject to State rules. Wills are tools in which to include customary values which may be significant to the testator. Will-making is certainly not a uniform process,^[4] and may vary from State to State and within States, dependent upon legal and customary law. ^[5] This entry contains basic will-making information for Aboriginal peoples in various States and regions, including Australia and Canada. It should be noted that the push for Aboriginal will-making does not address core issues of Indigenous law and legal pluralism (e.g. oral traditions as Aboriginal law has often been considered Sui Generis Despite this criticism, it is nevertheless possible to reconcile both Aboriginal and western perspectives to create a testamentary disposition.

The creation of a formal testamentary disposition will ensure that the testator can leave his/her valuable possessions to the right individuals, in addition to making sure that young children are provided with the correct and approved guardianship, and hinder any type of burial dispute by designating an executor or trustee (if there are trusts)of the estate. It may also be beneficial in protecting private customary law matters by maintaining their privacy or secrecy. A will is also protected by law, so it provides legal-backing or enforcement to the deceased's wishes.^[4]

Aboriginal and Torres Strait Islander Australians have a low rate of will making and are subject to myths obscuring the problem of inheritance, including that Aboriginal people have no property or interest in property beyond land, and that Aboriginal people either live totally in a traditional or urbanised Western lifestyle.^[6]

In Australia, wills can be made with the help of a lawyer, the public trustee office or by individuals. Certain requirements must be met in order for a will to be valid (see next section).The requirements are found in state legislation.^[4] Further information is found on Legal Aid and Public Trustee's websites (e.g. NT, ^[7] QLD, ^[8] NSW, ^[9][1] VIC, ^[10] SA, ^[11] WA,^[12] ACT^[13] and Tasmania.^[14]The New South Wales Aboriginal Wills Handbook aims to help aboriginals in that region plan and write their wills.^[1]

Wills must be written. ^[15] The testator (the person writing and executing the will) must sign the document in front of at least two witnesses who are present at the same moment. ^[16] It is recommended that the document is dated, initialed at the bottom of the pages and that all signatures are made with the same pen. ^[17][18]

The witnesses to the testator's signature must also sign the will in front of the testator. ^[19] Generally, witnesses cannot be blind but do not have to know the content of will. ^[20] It is possible for a witness to also be receiving something in the will, but this can sometimes make the will void unless there is an extra witness or a judge believes that the testator intended for them to benefit. ^[21] Legal Aid Western Australia recommends that witness not also be named to receive property and that they also write their names and address on the will. ^[22]

If there is a problem with the form of the will it can sometimes still be saved by a court. ^[23] This requires convincing a judge that the document was supposed to be a will and that the arrangements in the will were the intended outcome so it is easier to try to make a will according to the regulations.

Minors (those under 18) cannot write a will, unless there are special circumstances, for example if they are getting married. ^[24]

The testator must also have testamentary capacity. ^[25]

1. understand what a will is (the nature and effect)
2. understand what property he/she has to leave
3. understand who he/she wants to leave property to and that some people might have claims to property or support
4. be of sound mind (no disorder or delusions that influence or change how he/she disposes of the property)

It is essential that the testator intends the document they sign to be his/her will.^[26]. A will made under pressure or threat from someone else is invalid. ^[27]

The testator can change his/her will anytime. Writing a new will makes an old will invalid which is why dating the will is important. ^[28] A will can be altered by writing a supplemental document (a codicil) but these can be confusing and are therefore not recommended.^[29]

In Canada, Aboriginal will-making is administered federally for Indians or First Nations individuals who live on reserves, by the Indian Act ^[30] (art. 4 (3)). If the individual lives off-reserve, then the laws of the province, in which that individual lives will be applicable.

The Minister of Indian Affairs and Northern Development has power with regards to any property of deceased First Nations. This comprises of the power to appoint executors of wills, administrators and or remove them and appoint other individuals, permit executors to carry out the terms of the deceased's will, allow administrators to administer the property of First Nations who died intestate, and to put into motion the terms of a deceasedís will and administer the property of First Nations who die intestate, as well as the discretion to introduce anything else which is necessary (art. 43).

Article 45 of the Indian Act, gives First Nations the right to create a will and the Minister may accept as a will any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death. This means that First Nations can write a will without many of the same rigid formalities required in other provincial Act, as long as it is signed (art. 45 (2)). The only hurdle is that the will must be approved by the Minister thereafter or it may be approved if a court grants probate (art. 45 (3)). There are nevertheless some circumstances which may lead to the Minister to declare a will void (in whole or partially), including: if the will was created under undue influence or duress, there was no capacity, the testament may impose hardship on individual whom the testator had the responsibility to provide for, if the will attempts to dispose of land which is contrary to the interests of the band or the Indian Act, if the terms in the will are vague and difficult to understand making it difficult to equitably distribute the property upon death, or if the terms of the will go against public interest (art. 46 (1)).

If a will does not comply with the requirements, the Minister may declare that the deceased individual died intestate. If the will is partly void, any inheritance or devise may be expired (lapsed) (s. 46 (2)). This can always be appealed to the Federal Court of Appeal, within two months by any affected individual if the amount is greater than $500 (Art. 47). Provision on intestacy can be found in s. 48 of the Indian Act. A will cannot designate property to an individual who is not entitled to live on a reserve (s. 50(1). If it is made out to an individual who is not entitled to live on the reserve, the land shall be sold to the highest bidder with the proceeds of the sale paid to the beneficiary of the will (s. 50 (2)). If the land is not sold within six months, the land will revert to the band free from any claim on the part of the beneficiary, who will be paid at the discretion of the Minister from funds of the Band (s. 50 (3)). The Indian Estates Regulations allows for substantial compliance or acceptance of a will by the Minister even if it does not conform with the requirements of law in any province (s. 15).

Probate Act ^[31]

• General provision: s. 58 (1)
• Form: Must be 18+ and have sufficient capacity, (s. 59), must be in writing (s. 60 (1)), should be signed at the foot of the document by testator and 2 or more witnesses in the presence of each other (s. 60 (2))), signed by the testator (s. 60 (3)) at the end of the will, but this is not necessary (s. 60 (4)).

Wills Act ^[32]

• Form: Must be in writing, can either be in handwriting of testator and signed, or if not handwritten it should be signed by the testator in the presence of at least 2 witnesses, who should also sign the will in the presence of the testator. If the testator cannot write, the will should be read over to him/her in the presence of witnesses (s. 2(1)). The testator must be at least 17 years of age (s. 3). A witness can be a beneficiary under the will (s. 7 (1)).

Wills Act ^[33]

• Form: s. 3 (1), must be age of majority unless married (s. 4 (1)), must be in writing and should be signed at the foot by the testator (s. 6 (1) (a)), the signature must be witnesesd by two or more witnesses present at the same time (s. 6 (1) (b)). A will is also valid if it is written in the testatorís handwriting and signed (s. 6 (2)).There is a substantial compliance clause in s. 8 of the Act and it may apply if the court believes that the will embodies the testamentary wishes of the deceased, or the intention to revoke, alter or revive a will in a document other than a will.

Wills Act ^[34]

• General provision: s. 2
• Form: Will must be in writing (s. 3), must be signed by the testator at the end (s. 4 (a)), there are two or more witnesses present at the time (s. 4 (b)), the witnesses sign the will in the presence of the testator (s. 4 (c)), a will can also be handwritten by the testator and signed, without any witnesses (s. 6). The will cannot be made by an individual under 19 years, unless married (s. 8 (1) (a)).

Civil Code of Québec ^[35]

• General provision: 703-706
• Form: generally (713); will can be notarial or holograph, and must be in presence of witnesses (712), substantial compliance of holograph will or a will in the presence of witnesses can still be valid if it "unquestionably and unequivocally" contains the last wishes of the testator (714). A dated will can also be made with a notary in the presence of one or two witnesses (716), the notarial will must be read to the testator alone or in presence of a witness. The testator must then state that the will contains his/her last wishes (717 (1)). The notarial will must subsequently be signed by the testator, the witness or witnesses and the notary in each others presence (717 (2)). A holograph will can be handwritten by the testator and signed by him/her without any other formal requirements (726).
• Capacity: 703, 707, a minor cannot make a will unless it applies to articles of little value (708).

Succession Law Reform Act ^[36]

• General provision: s.2
• Form: Must be in writing (s. 3),must be signed by the testator (s.4 (1) (a)), testator must sign the will in the presence of two or more witnesses who are present at the same time (s. 4 (1)(b)) and the witnesses must also sign the will in the presence of the testator (s. 4 (1) (c)). A testator can also make a handwritten holographic will if it is signed by the testator; it does not require any formalities or signature of a witness (s. 6). The signature for a will can be made at the bottom of the will (s. 7 (1)). A will cannot be made by minors under 18 years of age, unless they are married (s. 8 (1)).

The Wills Act ^[37]

• General provision: s. 2
• Form: Must be in writing (s. 3), must be signed by the testator at the end (s. 4 (a)), the testator must sign in the presence of two or more witnesses (s. 4(b)), the witnesses must also sign the will in the presence of the testator (s. 4 (c)). A testator may also make a will by handwriting (holograph) and ensure to sign it at the end, without any other formalities or need for witnesses (s. 6).
• Capacity: a will cannot be made by a person under 18 years of age, unless they are married (s. 8 (1) (b)).

The Wills Act ^[38]

• Form: Must be in writing and signed by the testator (7 (1)(a)), it is apparent the testator by signing meant to give effect to the will (s. 7 (1)(b)), the will must be signed by the testator in front of two or more witnesses who are present at the same time (7 (1)(c)), and at least two witnesses must sign the will in the presence of the testator or acknowledge the signatures on the will (s. 7 (1) (d)). The testator may also create a handwritten holograph will, signed by him or her, without any other formalities or the need of witnesses (s. 8).

• Capacity: the testator must be 18 years of age (s. 4) unless they are married (s.5).

Wills and Succession Act ^[39]

• General provision: s.9
• Form: The individual must be at least 18 years of age and of full capacity (s. 13 (1). They may nevertheless write a will if they are married (s. 13 (2)). The will must be written and signed in the presence of two witnesses who are present at the same time, and each witness must sign the will in the presence of the testator (s. 14-15). A testator may make a signed, handwritten holograph will without any need for formality or witnesses. (s. 16).

Wills Act ^[40]

• General provision: s.2
• Form: Must be in writing (s. 3), must be signed by the testator in the presence of two or more witnesses, who sign the will in the presence of the testator (s. 4). The testator's signature may be at the foot of the document (s. 6(1)). The testator must be over 19 years of age unless he or she is married (s. 7 (1) (b)).