Date: 20010515
Docket: T-1097-96
Neutral citation: 2001 FCT 484
Ottawa, Ontario, Tuesday the 15th day of May 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
GERALDINE CAMERON and
LUCILLE CAMERON
Appellants
- and -
THE MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT,
THE ESTATE OF GERALD WILLIAM RITCHIE
and M. ELIZABETH RITCHIE
Respondents
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] This is an appeal, pursuant to section 47 of the Indian Act, R.S.C. 1985, c. I-5 ("Act") from the decision of the Minister of Indian Affairs and Northern Development ("Minister") made on March 13, 1996. By that decision the application of M. Elizabeth Ritchie for approval of will and appointment of administratrix with will annexed was approved, and Mrs. Ritchie was appointed the administratrix with will annexed of the estate of her late husband Mr. Gerald William Ritchie.
[2] The appeal is brought by Geraldine and Lucille Cameron who were, respectively, Mr. Ritchie's first wife and daughter.
FACTS
[3] The following facts are not in dispute.
[4] Gerald Ritchie died on November 8, 1995, leaving all of his property to his wife Elizabeth Ritchie by way of a will dated June 28, 1974. By that will Mr. Ritchie also appointed Marie Jones as the executrix of his will. Marie Jones was the officer in charge of the Bruce Agency, Chippewa Hill, Indian Agency Office of the Department of Indian and Northern Affairs. At the time of his death, Mr. Ritchie was ordinarily resident of the Saugeen Reserve No. 29.
[5] By letter dated December 8, 1995, Lucille Cameron informed Elizabeth Ritchie that she intended to file a claim against Gerald Ritchie's estate. By letter dated January 2, 1996, Lucille Cameron wrote to Marie Jones as follows:
My name is Lucille Cameron. I am the thirty-four year old daughter of Gerald William Ritchie and Geraldine Cameron. This is my claim against the estate of my father, Gerald Ritchie. I feel that I am entitled to compensation for:
1) Unpaid child support for a period of seventeen years. (My father left my mother when I was one year old.)
2) Injuries and damages suffered by me as a result of my fathers [sic] infliction of emotional and psychological abuse, neglect and abandonment.
3) I strongly prefer that some beach front properties be allotted to me.
Further details of my fathers [sic] abusive behaviour are available upon request.
[6] Marie Jones renounced her appointment as the executrix of Gerald Ritchie's will on March 4, 1996. On February 23, 1996, Elizabeth Ritchie had applied for the approval of Gerald Ritchie's will and to be appointed administratrix of that will. Mrs. Ritchie's application was supported by an estate officer of the Ministry of Indian Affairs and Northern Development who recommended that Gerald Ritchie's will be approved and that Elizabeth Ritchie be appointed administratrix of the estate.
[7] On March 13, 1996, the Minister of Indian and Northern Development approved Gerald Ritchie's will and appointed Elizabeth Ritchie as administratrix with will annexed of Gerald Ritchie's estate.
ISSUES
[8] The narrow issues raised by this appeal are:
1. Did the Minister err in approving Gerald Ritchie's will and in appointing Elizabeth Ritchie as administratrix with will annexed in circumstances where the Minister had prior written notice that the deceased's daughter had a claim against the estate?
2. If so, does this Court have the authority to grant an order setting aside the Minister's decision and declaring Gerald Ritchie's will to be void in whole or in part?
STATUTORY FRAMEWORK
[9] The following provisions of the Act are relevant to this appeal:
| 42. (1) Subject to this Act, all jurisdiction and authority in relation to matters and causes testamentary, with respect to deceased Indians, is vested exclusively in the Minister and shall be exercised subject to and in accordance with regulations of the Governor in Council.
(2) The Governor in Council may make regulations providing that a deceased Indian who at the time of his death was in possession of land in a reserve shall, in such circumstances and for such purposes as the regulations prescribe, be deemed to have been at the time of his death lawfully in possession of that land.
(3) Regulations made under subsection (2) may be made applicable to estates of Indians who died before, on or after September 4, 1951.
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42. (1) Sous réserve des autres dispositions de la présente loi, la compétence sur les questions testamentaires relatives aux Indiens décédés est attribuée exclusivement au ministre; elle est exercée en conformité avec les règlements pris par le gouverneur en conseil. Règlements
(2) Le gouverneur en conseil peut prendre des règlements stipulant qu'un Indien décédé qui, au moment de son décès, était en possession de terres dans une réserve, sera réputé, en telles circonstances et à telles fins que prescrivent les règlements, avoir été légalement en possession de ces terres au moment de son décès. Application des règlements
(3) Les règlements prévus par le paragraphe (2) peuvent être rendus applicables aux successions des Indiens morts avant ou après le 4 septembre 1951 ou à cette date.
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| 43. Without restricting the generality of section 42, the Minister may
(a) appoint executors of wills and administrators of estates of deceased Indians, remove them and appoint others in their stead;
(b) authorize executors to carry out the terms of the wills of deceased Indians;
(c) authorize administrators to administer the property of Indians who die intestate;
(d) carry out the terms of wills of deceased Indians and administer the property of Indians who die intestate; and
(e) make or give any order, direction or finding that in his opinion it is necessary or desirable to make or give with respect to any matter referred to in section 42.
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43. Sans que soit limitée la portée générale de l'article 42, le ministre peut :
a) nommer des exécuteurs testamentaires et des administrateurs de successions d'Indiens décédés, révoquer ces exécuteurs et administrateurs et les remplacer;
b) autoriser des exécuteurs à donner suite aux termes des testaments d'Indiens décédés;
c) autoriser des administrateurs à gérer les biens d'Indiens morts intestats;
d) donner effet aux testaments d'Indiens décédés et administrer les biens d'Indiens morts intestats;
e) prendre les arrêtés et donner les directives qu'il juge utiles à l'égard de quelque question mentionnée à l'article 42.
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| 46. (1) The Minister may declare the will of an Indian to be void in whole or in part if he is satisfied that
(a) the will was executed under duress or undue influence;
(b) the testator at the time of execution of the will lacked testamentary capacity;
(c) the terms of the will would impose hardship on persons for whom the testator had a responsibility to provide;
(d) the will purports to dispose of land in a reserve in a manner contrary to the interest of the band or contrary to this Act;
(e) the terms of the will are so vague, uncertain or capricious that proper administration and equitable distribution of the estate of the deceased would be difficult or impossible to carry out in accordance with this Act; or
(f) the terms of the will are against the public interest.
(2) Where a will of an Indian is declared by the Minister or by a court to be wholly void, the person executing the will shall be deemed to have died intestate, and where the will is so declared to be void in part only, any bequest or devise affected thereby, unless a contrary intention appears in the will, shall be deemed to have lapsed.
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46. (1) Le ministre peut déclarer nul, en totalité ou en partie, le testament d'un Indien, s'il est convaincu de l'existence de l'une des circonstances suivantes :
a) le testament a été établi sous l'effet de la contrainte ou d'une influence indue;
b) au moment où il a fait ce testament, le testateur n'était pas habile à tester;
c) les clauses du testament seraient la cause de privations pour des personnes auxquelles le testateur était tenu de pourvoir;
d) le testament vise à disposer d'un terrain, situé dans une réserve, d'une façon contraire aux intérêts de la bande ou aux dispositions de la présente loi;
e) les clauses du testament sont si vagues, si incertaines ou si capricieuses que la bonne administration et la distribution équitable des biens de la personne décédée seraient difficiles ou impossibles à effectuer suivant la présente loi;
f) les clauses du testament sont contraires à l'intérêt public.
(2) Lorsque le testament d'un Indien est déclaré entièrement nul par le ministre ou par un tribunal, la personne qui a fait ce testament est censée être morte intestat, et, lorsque le testament est ainsi déclaré nul en partie seulement, sauf indication d'une intention contraire y énoncée, tout legs de biens meubles ou immeubles visé de la sorte est réputé caduc.
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| 47. A decision of the Minister made in the exercise of the jurisdiction or authority conferred on him by section 42, 43 or 46 may, within two months from the date thereof, be appealed by any person affected thereby to the Federal Court, if the amount in controversy in the appeal exceeds five hundred dollars or if the Minister consents to an appeal.
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47. Une décision rendue par le ministre dans l'exercice de la compétence que lui confère l'article 42, 43 ou 46 peut être portée en appel devant la Cour fédérale dans les deux mois de cette décision, par toute personne y intéressée, si la somme en litige dans l'appel dépasse cinq cents dollars ou si le ministre y consent.
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[10] In asserting that the Minister's decision must be set aside, the appellants argued that the Minister had notice of their claim; that the claim was in substance with respect to beach front properties and hence raised a matter or cause testamentary; that the Minister has, pursuant to subsection 42(1) of the Act, exclusive jurisdiction and authority in relation to matters and causes testamentary with respect to deceased Indians (at least those ordinarily resident on a reserve); and that by approving the will the Minister failed to address the appellants' claim and in so doing breached the rules of natural justice and a fiduciary duty to act in good faith.
[11] Central to the appellants' argument is the contention that their claim is a matter or cause testamentary, and hence within the exclusive jurisdiction of the Minister under section 42 of the Act. It is therefore necessary to carefully analyse the nature of the claim.
[12] The appellants do not claim to be beneficiaries of the estate, nor do they advance any claim under dependent's relief legislation, nor do they allege a claim of a nature so as to engage the Minister's jurisdiction under section 46 of the Act.
[13] The claim, I believe, is one properly characterized as a claim to monies owed by the estate. To the extent a claim is belatedly advanced for child support, the claim appears to be liquidated and based upon an order under the Ontario The Deserted Wives' and Children's Maintenance Act, R.S.O. 1970, c. 128 which required weekly payments commencing on August 26, 1967. To the extent a claim is advanced for injuries and damages for abuse and neglect, it is unliquidated.
[14] It is next necessary to consider if claims of that nature are matters or causes testamentary. In Re McElhinney (1930), 2 D.L.R. 290 (Sask. C.A.), the Saskatchewan Court of Appeal reviewed the nature of the jurisdiction conferred upon the English Probate Court by the English Probate Act, 1857, and the nature of the jurisdiction conferred by the Saskatchewan Surrogate Courts Act of 1907 upon the Surrogate Court of Saskatchewan. The jurisdiction of those Courts was noted to be with respect to the granting or revoking of probate of wills or letters of administration, and with respect to "matters and causes testamentary". The phrase "matters and causes testamentary" was held to mean matters and causes relating to the grant and revocation of probate of wills and of administration, and incidental matters.
[15] It follows that, just as the jurisdiction conferred upon surrogate courts with respect to "matters and causes testamentary" did not encompass all matters relating to estates, "matters and causes testamentary" does not include all matters relating in any way to estates.
[16] This was recognized by the Court of Appeal of British Columbia in Sampson v. Gosnell Estate (1989), 57 D.L.R. (4th ) 299 (B.C.C.A.), where the Court considered whether a claim advanced by an Indian that her deceased father had entered into an agreement with her that in consideration for certain work he would leave his estate to her, was a matter or cause testamentary. The Court, relying in part upon Re McElhinney, supra, found that it was not. It followed that the decision of the administrator of the estate to refuse payment to the daughter was not a decision of the Minister within the meaning of subsection 47(1) of the Act so that the daughter's claim was one properly brought in the courts of British Columbia.
[17] I find this interpretation as to what is included in the phrase "matters and causes testamentary" to be persuasive, and consistent with the nature of the particular powers enumerated in section 43 of the Act.
[18] I conclude, therefore, that the claim of the appellants to monies owing from the estate is not a claim in relation to matters or causes testamentary.
[19] The expression of a preference as to how that money claim is to be satisfied, in this case by the allotment of beach front properties, cannot operate to alter fundamentally the nature of the claim to make it other than a claim to monies owed by the estates.
[20] It follows from this characterization of the appellant's claim that it provided no basis upon which the Minister could have declared Mr. Ritchie's will void. The appellants' proper remedy was, and may still be, to present the claim to the administratrix of the estate. The Indian Estates Regulations, C.R.C., c. 954 ("Regulations") prescribe a procedure for the making of such claims and their determination. Any rejection of the claim, could, as a matter of law, be challenged in the courts of Ontario as was done in Sampson, supra.
[21] Nor was the assertion of this money claim a ground for refusing the appointment of Mrs. Ritchie as administratrix with will annexed as part of the exercise of the Minister's proper jurisdiction over matters and causes testamentary.
[22] I believe these conclusions are dispositive of the appeal. For the sake of completeness, I add that the evidence failed, in my view, to establish any breach of natural justice or any breach of any fiduciary relationship which may have existed.
[23] There is in this circumstance no need to consider the jurisdiction of the Court to declare Mr. Ritchie's will to be void.
[24] In oral argument, none of the respondents strongly pressed their claims for costs. It appears from the affidavit of Marie Jones that the notice to creditors required pursuant to subsection 8(1) of the Regulations was not posted on a timely basis. There is nothing in the record to suggest efforts by the Administratrix to deal with the claim as contemplated by subsection 11(3) of the Regulations. In the circumstances, I think it fairest that each party bear their own costs.
ORDER
[25] IT IS THEREFORE ADJUDGED THAT:
The appeal is dismissed without costs to any party.
"Eleanor R. Dawson"
Judge
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