The recent decision in Bayliss v Burnham, 2025 ONSC 5376, by Justice Faieta of the Ontario Superior Court of Justice provides insight into how the testamentary provisions of the Indian Act apply, and interplay with other relevant laws, in a Will challenge.
Background
Kenneth Hill was a successful and wealthy businessman. He co-founded Grand River Enterprises (GRE), a company that makes and exports cigarettes. He died at the age of 62 due to natural causes. Mr. Hill was unmarried but survived by nine children from eight different mothers. His children span the ages of 9 to 44 years old.
After Mr. Hill passed, a handwritten Will surfaced that was purportedly made by him a few months prior to his death. The purported Will names Mr. Hill’s son Ryan Burnham as executor and leaves Mr. Hill’s interest in GRE, worth about $38 million, to Mr. Burnham. The Will also made bequests of $5 million to five of Mr. Hill’s children, $3 million to one child, and nothing to two children. Some of Mr. Hill’s children and their mothers challenged the validity of the Will, seeking to have it set aside.
Mr. Hill was a permanent resident of the Six Nations of the Grand River Reserve and a band member of the Mohawk Nation. He was also a status Indian under the Indian Act (the “Act”). Testamentary matters for status Indians are governed under the Act and the Indian Estates Regulations. In this case, jurisdiction of Mr. Hill’s estate was transferred by Ministerial Order to the Ontario Superior Court of Justice pursuant to s.42(1) of the Act.
Legal Issues
The issues before the Court were as follows:
- Was the purported Will duly executed by Mr. Hill pursuant to the Indian Act, the Succession Law Reform Act (the “SLRA”), or otherwise at common law?
- Was the purported Will made under suspicious circumstances?
- Did Mr. Hill have knowledge of, and approve, the contents of the purported Will?
These issues also gave rise a fourth issue, namely whether the Court had the authority to apply the common law when determining the validity of a will made by a status Indian that is subject to the Act.
Decision
The Court held that the common law principles related to the validity of a will, including the doctrine of suspicious circumstances and the requirement that a testator know and approve of the contents of their Will, apply to Mr. Hill’s Will. The powers, jurisdiction, and authority of the Court under s. 11(2) of the Courts of Justice Act are preserved, rather than displaced, by s. 44(1) of the Act and the Minister’s Order.
As for the purported Will in question, the Court ultimately held that it was not valid under the Act, the SLRA, or common law. The Will was not duly executed pursuant to the formal requirements for making a valid Will as specified in s.45(2) of the Act, which is less stringent than the requirements set out in s.4 of the SLRA. The Court also found suspicious circumstances surrounding the execution of the Will, and the Respondent failed to establish that Mr. Hill knew and approved of the contents of the Will. According to the Court, there were gaps in the evidence that could not be filled by inference:
“There is no evidence regarding the factual circumstances surrounding the execution of the Purported Will. There is no evidence of who drafted and typed the Purported Will. There is no evidence of when and where it was created and signed. There is no evidence of how a copy of Mr. Hill’s signature ended up on the Purported Will. There is no evidence of whether Mr. Hill reviewed the Purported Will prior to its execution. In addition, the circumstances in which the Purported Will was allegedly given to, kept, and later found by, Mr. Montour are quite odd.” [para 97]
Take-Aways
This case provides helpful guidance on how differing legal frameworks apply to Wills made by status Indians subject to the Act. It also suggests that where foundational facts – e.g. when, where, by whom, and in whose presence the Will was signed – are missing, courts may decline to fill those gaps by inference in order to find a valid Will.
If you’re involved in estate planning or litigation concerning status Indians, understanding the intersection of the Indian Act and common law is crucial. Contact our wills and estate lawyers today to ensure your estate matters are handled with clarity, compliance, and care.
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