NATIVE PEOPLES |
Leonard v. Canada
T-62-03
2004 FC 665, Lemieux J.
6/5/04
19 pp.
Wills--Appeal pursuant to Indian Act, s. 47, from decision of Minister's delegate finding April 5, 1999 document, signed by appellant's grandfather who died on May 31, 2001 not testamentary in nature--Minister's delegate determined as document could actually have taken effect prior to time of death, not meeting fourth requirement of Act, s. 45(2), i.e. takes effect upon death--Deceased's estate including two trailer parks located on Indian reserve: G&M Trailer Court and Leonard Estate Trailer Park--Dispute concerning Leonard Estates Trailer Park--As to application of Act, s. 47, respondent wife of deceased claiming decision made under s. 45 and therefore excluded from being appealed by s. 47--In Morin v. Canada (2001), 213 F.T.R. 291 (F.C.T.D.), Dawson J. deciding source of Minister's jurisdiction to accept written instrument as will contained in Act, s. 42, conferring jurisdiction over matters, causes relating to grant, revocation of probate of wills--Holding s. 45 not conferring powers on Minister but making express rights of Indians, i.e. providing Indians may devise property by will, not bound by same formal requirements found in provincial wills legislation, and no will of legal force or effect until either approved by Minister or admitted to probate by Court--Morin holding (1) power conferred upon Minister by s. 42 equivalent or similar to that exercised by surrogate or probate courts whose principal duties to decide whether document entitled to probate as testamentary instrument, and to decide who is entitled to be constituted personal representative of deceased; (2) testamentary instrument intended to take effect after testator's death which requires conclusion about testamentary intent--Proper standard of review correctness--According to Minister, document not revealing deceased's intention to deal with Leonard Estates on his death because document not entirely dependent on death for its operation since could have taken effect, prior to death, if deceased had become incapable of conducting his affairs--Minister's delegate erred by not considering whether offending term "or incapacity to conduct my affairs" should be severed from clearly testamentary disposition, i.e. reversion on death to grandson of certain legal rights flowing from deceased's agreement with Halston Homes--Document testamentary document which must be given effect to by Minister--Appeal allowed--Indian Act, R.S.C., 1985, c. I-5, ss. 42, 45, 47.