Federal Court

Aboriginal Law

Aboriginal law


Reasonable for Minister of Indigenous and Northern Affairs Canada to prevent estate from being spent on litigation in absence of evidence to support challenge to will

Wills and estates. Prior to passing, deceased wrote two wills. In first will, deceased left all his possessions to son and named son executor of estate and in second will, son received nothing. Son wrote to Minister of Indigenous and Northern Affairs Canada objecting to second will on basis of duress, undue influence, testamentary capacity and hardship. Minister retained jurisdiction of deceased’s testamentary matters and approved his will. Son appealed. Appeal dismissed. Given limited resources of estate, it was reasonable for Minister to decide to retain jurisdiction to prevent estate from being spent on litigation when no evidence was provided to support son’s allegations, and given that parties who objected to transfer did provide medical evidence from his doctor of capacity. Minister reasonably interpreted Indian Act to mean that issues under section 46 were appropriately addressed in separate application to void will if Minister first approved will. Parliament expressly created section 46 of Indian Act as distinct will challenge, which was challenge distinct from approval under section 45 pursuant to section 42.

Thorne v. Canada (2017), 2017 CarswellNat 7039, 2017 CarswellNat 7570, 2017 FC 1116, 2017 CF 1116, Glennys L. McVeigh J. (F.C.).

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