Court File and Parties

Court File No.: CV-21-00661986-00ES Date: October 1, 2025 Ontario Superior Court of Justice

In the Matter of the Estate of Kenneth Ryan Hill

Between:

Applicants:

• Rayna Rachelle Bayliss
• Emery John Bayliss, by his Litigation Guardian, Rayna Bayliss
• Alisha Sherine Milhim
• Gabryella Milhim-Hill, by her Litigation Guardian, Alisha Milhim
• Brittany Beaver
• Brody Hill Beaver
• Catherine Anne Haggett
• Jordan Austin Hill and Jasmine Alura Hill, by their Litigation Guardian, Catherine Anne Haggett
• Katherine Andersen and Jacob Matthew Andersen
• Maegan Martin

And:

Respondent:

• Ryan Edward Dalton Burnham, in his capacity as named Estate Trustee for the Estate of Kenneth Ryan Hill

Counsel

For the Applicants:

• Alexander Turner and Samuel Rabinovitch (for Rayna Rachelle Bayliss, Emery John Bayliss, Alisha Sherine Milhim, and Gabryella Milhim-Hill)
• Arieh Bloom and Jessica Karjanmaa (for Brittany Beaver and Brody Hill Beaver)
• Justin H. Nasseri and Gordon Vance (for Catherine Anne Haggett, Jordan Austin Hill, and Jasmine Alura Hill)
• Zara Wong (for Maegan Martin)
• George Pappas and Anuran Sivakumaren (for Katherine Andersen and Jacob Matthew Andersen)

For the Respondent:

• Kelly A. Charlebois and Peter Askew (for Ryan Edward Dalton Burnham)

Hearing Dates

September 12, 13, 16, 17, 18, and 19, 2024; October 15, 2024

Judge

M.D. Faieta J.

Reasons for Decision

Introduction

1Kenneth Ryan Hill ("Mr. Hill" also referred to by the witnesses as "Kenny") was a wealthy, self-made man. Mr. Hill was a status Indian registered under the Indian Act, R.S.C. 1985, c. I-5 (the "Act"), a permanent resident of the Six Nations of the Grand River Reserve ("the Reserve") and a band member of the Mohawk Nation.¹ Jurisdiction over Mr. Hill's estate was transferred by Ministerial Order dated June 2, 2021 to the Ontario Superior Court of Justice.

2Mr. Hill was unmarried but survived by nine children (the "Children") from eight different mothers:

a) Maeghan Martin, 44 years old;

b) Joshua Hill, 39 years old;

c) Ryan Edward Dalton Burnham ("Mr. Burnham"), 34 years old;

d) Jacob Matthew Anderson, 21 years old; his mother is Katherine Andersen;

e) Brody Kenneth Michael Hill-Beaver, 16 years old; his mother is Brittany Beaver;

f) Emery John Bayliss, 12 years old; his mother is Rayna Rachelle Bayliss;

g) Gabryella Milhim-Hill, 11 years old; her mother is Alisha Sherine Milhim;

h) Jasmine Alura Hill, 14 years old and Jordan Austin Hill, 9 years old. Their mother is Catherine Haggett.

3Following Mr. Hill's death in Miami on January 23, 2021, at the age of 62, due to natural causes, the only document found that appears to reflect his testamentary intentions is a signed, unwitnessed, typewritten document dated September 10, 2020 ("the Purported Will") which, on its face, was made a few months before his death on January 23, 2021. The Purported Will names his son Mr. Burnham as executor and leaves Mr. Hill's interest in Grand River Enterprises ("GRE"), worth about $38 million, to him. It also made bequests of $5 million to each of his Children other than Maeghan Martin, Joshua Hill and Brody Hill-Beaver. No bequest was made to Maeghan Martin or to Joshua Hill. A bequest of $3 million was made to Mr. Hill-Beaver. During his lifetime, Mr. Hill did not recognize Ms. Martin as one of his children however, after his death, it was established that Mr. Hill is her father.

4The Children challenge the validity of the Purported Will on the grounds that Mr. Hill did not sign the Purported Will and that he did not know and approve of its contents.

Background

5Mr. Hill's lifelong friend and business partner for over 30 years, Jerry Montour, stated that Mr. Hill grew up in a "very poor and very tough environment" on the Reserve. Mr. Montour stated that although Mr. Hill could read certain passages of documents that he was signing, Mr. Hill would ask Mr. Montour "to explain everything he was signing".

6Mr. Hill became a very successful and wealthy businessman. Along with Mr. Montour, he co-founded GRE, a company that makes and exports cigarettes.

7Mr. Hill owned homes in Ontario, Florida, and the Bahamas. He also owned a yacht and traveled by private jet frequently. Mr. Hill kept company with celebrities and sports legends. He also owned an extensive car collection worth several million dollars. Mr. Hill kept large amounts of cash in a location referred to as "the Corner" and in various safes on his properties.

8Mr. Montour described Mr. Hill as "extremely charismatic" and "very assertive when he wanted his way". He stated that:

[Mr. Hill] was very passionate about First Nation rights. When you're successful you're never entirely liked by everybody. For me to tell you that every single person on Six Nations adored Mr. Hill would not be truthful, but I would say the majority of the people had respect for him …

9Mr. Burnham described his father as follows:

He was a man larger than life. He was a presence. If he walked into a room, you knew he was walking in. He was a man with pride. He had a big heart. He loved his family. He was just a leader in the community. A pillar.

10Mr. Hill had a close relationship with Mr. Burnham. They saw each other once or twice a week and they spoke on the telephone every other day. They travelled together several times each year. Mr. Burnham described Mr. Hill as "a vault". Mr. Burnham did not know about Jacob Andersen or his mother, Katherine Andersen, until the Purported Will was discovered.

11Mr. Montour described Mr. Hill as an "extremely private person" and stated that Mr. Hill never discussed his personal finances with him even though they were best friends and business partners. This privateness is reflected by the fact that prior to Mr. Hill's death, Mr. Montour had never heard of several of Mr. Hill's children, namely, Emery Bayliss, Rayna Bayliss and Jacob Andersen.

12Mr. Hill's lawyer, John Hammond, stated that Mr. Hill was "not one to share any aspect of his life, and I knew very little about his private life".

13Mr. Hammond practices in the areas of corporate/commercial law, Indigenous business affairs and intellectual property. He met Mr. Hill in 2005 when he was retained by GRE. About two years later, he was retained by Mr. Hill in relation to his own personal affairs. Over the course of their relationship, Mr. Hammond met Mr. Hill once or twice a month, typically at a restaurant on the Reserve. Mr. Hammond described Mr. Hill as follows:

Kenny was larger than life. He was, by turn, a celebrity on Reserve. He was a political force on Reserve. He was very gruff, but at the same time could be charming in an instant. He could have a temper. He could be absolutely miserly, especially when it came to legal fees, but in turn be very, very generous. He could be physically intimidating to [the] people that he met. Not that he was a violent man in any meetings but he did rely on his presence. He had an aptitude and an appetite for grandeur. He loved being rich, and he wanted everyone to recognize that. And I think he very much wanted and deserved respect.

14Mr. Hill disliked lawyers and appears to have avoided them when possible. Mr. Hammond stated:

[Mr. Hill's] views on lawyers generally did not improve over the years so that they were a necessary evil when we first met because he recognized the need to have legal counsel off Reserve.

At times he considered them to be an unnecessary evil and decided to go it his own way. That often ended unwell for him and that conduct, he realized was ill-advised. But his opinion of the legal profession never improved, and I would dare say during the family law litigation, it deteriorated.²

15Mr. Hammond testified that at the time of his death, Mr. Hill's estate was estimated to be worth at least $83 million, consisting of the following assets:

(a) His shares in GRE were worth at least $38 million;

(b) His real and personal property, boats, vehicles and bank accounts in Canada, the United States and the Bahamas were worth about $45 million; and,

(c) His on-reserve real property has not been valued.

16From early in their relationship, Mr. Hammond suggested to Mr. Hill about twice a year that it was important for him to prepare an estate plan and that he could assemble a team to do so. Although he ignored Mr. Hammond's recommendation for many years, in about 2010 Mr. Hill responded to Mr. Hammond's recommendation to make a will by saying "Yes, I'll have to take care of it". Mr. Hammond stated:

Later, and at one point he said, well, what would you need to get this going? And I said, to start this, I need your undivided attention for an afternoon. I need four or five hours of your time just to understand what it is you have. Because although I was involved in many of his businesses on Reserve and in Ontario, I did not know the full picture, and I needed to find that out before I could even approach others to form a team that could advise him directly.

17A text message sent by Mr. Hill on October 16, 2019 to the applicant Catherine Haggett stated that he had turned his mind to making a will. Their exchange, in part, reads:

Ms. Haggett: … Everything good?

Mr. Hill: Awesome! My Lawyer been after me to do a will, with me next week he been bugging me coupla [sic] years now, will take about 4 hrs, I will make Ryan and Jasmine in charge of things, Cat what I've built for our Family and our Kids, if all goes as planned,, will be off the charts, for many years to come and success in their schooling and business's.

18However, Mr. Hammond never prepared a will for Mr. Hill. He last spoke to Mr. Hill about preparing a will in October 2020 at a café. Mr. Hill told Mr. Hammond that he had transferred all of his on-Reserve business to Mr. Burnham. The evidence shows that this was true.

19In September 2020, the business bank accounts were transferred into Mr. Burnham's name. On September 14, 2020, Mr. Hill took steps to transfer various businesses located on the Reserve to Mr. Burnham. Applications for the registration of the following businesses in Mr. Burnham's name were completed for filing with the Band Council office: (a) Sit-N-Bull Gas and Variety; (b) Pro Fit; (c) Sit-N-Bull Tire; (d) Sit-N-Bull Construction; (e) What-a-Convenience; (f) Grand River Spa and Wellness; (g) Jukasa Media Group. On October 15, 2020, the business registrations were issued by the Band Council.

20At that same meeting, Mr. Hammond stated that he asked Mr. Hill about whether he was ready to prepare a will and was told that he had "taken care of" it. When Mr. Hammond was about to ask further questions, Mr. Hill walked away.

21The Purported Will, which again for clarity is Mr. Hill's purported Will, dated September 10, 2020, is reproduced here:

[The text of the Purported Will is not reproduced in this decision]

22Mr. Montour stated that Mr. Hill gave him the Purported Will on January 1, 2021 at his home in the Bahamas. Mr. Montour had been up until 5 or 6 am earlier that day celebrating the New Year at a party for 400 people at his home. Mr. Montour stated that Mr. Hill, who lived nearby, seemed agitated. After some idle chit-chat, Mr. Hill gave Mr. Montour an envelope and said "if anything ever happens to me, give this to my lawyer". No one witnessed this conversation.

23Mr. Montour did not ask Mr. Hill who his lawyer was but assumed that Mr. Hill was referring to Mr. Hammond. Mr. Montour did not recall what the envelope looked like, its colour, or whether there was any writing on the envelope. Mr. Hill did not tell Mr. Montour what was inside the envelope nor did Mr. Montour ask. Mr. Montour gave the following explanation for not asking Mr. Hill what was inside the envelope:

We never asked each other questions like that. Like, we didn't – like our relationship, when he said something to you about anything and – you didn't ask, you just agreed with him, okay

24Mr. Montour never had any further communication about the envelope with Mr. Hill.

25Mr. Montour returned home to Canada on January 4, 2021. On January 18, 2021, Mr. Hill died in Miami, Florida from natural causes. Mr. Montour did not expect Mr. Hill's death and was distraught. Mr. Montour flew to Florida with Mr. Burnham for the purpose of bringing Mr. Hill's remains home for burial on January 23, 2021.

26Mr. Montour stated that his first conversation after Mr. Hill's death about whether Mr. Hill had a will was with Mr. Hammond who was not only Mr. Hill's personal lawyer and GRE's lawyer, but also Mr. Montour's personal lawyer. Mr. Hammond stated that this telephone conversation occurred after Mr. Hill's burial. Mr. Montour stated that he was surprised that Mr. Hammond did not have Mr. Hill's will. Mr. Montour stated that Mr. Hammond asked for his help in finding Mr. Hill's will. Mr. Hammond stated that Mr. Montour told him that Mr. Montour had no knowledge of a will having been made by Mr. Hill.

27Mr. Hammond testified that he contacted various people, including another lawyer and Brandon Bullard, who was Mr. Hill's "chief right hand man" and none of these people had any knowledge of Mr. Hill having made a will. Mr. Hammond stated that Mr. Burnham told him that he had no knowledge of a will being made by Mr. Hill.

28Mr. Montour testified that although he did not recall being given a will by Mr. Hill, he did remember being given an envelope which he was to give to Mr. Hammond on his death. As a result, Mr. Montour commenced looking for the envelope. Mr. Montour did not find the envelope at his homes in Canada. However, on or about February 5, 2021, Mr. Montour found the envelope in his home in the Bahamas on a bedroom closet shelf under clothes that were to be taken to a dry cleaner. He opened the unsealed envelope, read the top half of the document, "saw Kenny's name, saw that it was a Will, put it back in, shut it and closed it". Mr. Montour stated that the top portion of the document that he saw appears to be the Purported Will. Mr. Montour stated that he had no involvement in the preparation of the Purported Will nor does he have any knowledge as to how the Purported Will was prepared.

29Mr. Hammond testified that he received a telephone call from Mr. Montour on February 8, 2021. He was under the impression that Mr. Montour was calling from the Bahamas. He stated that Mr. Montour told him that he had found Mr. Hill's will in an envelope.

30After returning home from the Bahamas one or two days after finding the envelope containing the Purported Will, Mr. Montour stated that Mr. Hammond told him to deliver the will. Mr. Montour drove to a GRE meeting that he expected Mr. Hammond would be attending, but Mr. Hammond was not there. Mr. Montour arranged for Nathan Leonard to deliver the envelope to Mr. Hammond's office. Later that day, Mr. Montour called Mr. Hammond to confirm that he had received the envelope but does not recall his response.

31Mr. Montour could not recall when he saw a full copy of the Purported Will but stated that he read it with another lawyer that he hired for the purpose of being examined in early 2024 in this proceeding.

32Mr. Montour stated that he will not benefit in any way if the Purported Will is upheld as a valid will. He has a Grade 8 education and usually relies on his lawyer to read legal documents. Mr. Montour does not use email, nor does he own a computer. He has never created a document on a computer.

Issues

33On August 15, 2023, this Court ordered a trial of the following issues:

(a) Was the Purported Will duly executed by Kenneth Ryan Hill pursuant to the Indian Act, the Succession Law Reform Act, R.S.O. 1990, c. S.26 ("SLRA"), or otherwise at common law?

(b) Was the Purported Will made under suspicious circumstances?

(c) Did Mr. Hill have knowledge of, and approve, the contents of the Purported Will?

34These three issues by necessity raise a fourth issue, namely whether this Court has the authority to apply the common law when determining the validity of a will made by an Indian that is subject to the Act.

Federal Regulation of Testamentary Matters and Causes under the Indian Act

35Testamentary matters for Indians are governed under the Act and the Indian Estates Regulations, C.R.C., c. 954 (the "Regulation"). This scheme is described in Albert H. Oosterhoff et al., Oosterhoff on Wills, 9th ed. (Toronto: Thomson Reuters, 2021) at pp. 20-21 as follows:

The Indian Act and the Indian Estates Regulations contain a complete code governing testamentary matters of status Indians, that is, persons who are registered as Indians or entitled to be so registered and who are ordinarily resident on a reserve or on designated lands. This code supersedes customary law and provincial legislation dealing with succession. It vests all jurisdiction in relation to "matters and causes testamentary" of deceased Indians in the Minister of [Indigenous Services]. An appeal from the Minister's decision lies only to the Federal Court. …

Under the code, the Minister may hold a will valid, or declare it void for duress or undue influence, lack of capacity, or uncertainty. The Minister may also avoid a will if it would cause hardship to the testator's dependants, disposes of land contrary to the interest of the band, or is against the public interest. The Minister may appoint and remove an executor and administrator, distribute an estate, and approve a devise of reserve land. In addition, the Minister may make any order, direction, or finding that is necessary in connection with any testamentary matter. Alternatively, the Minister has power under s. 44 of the Act to consent to a provincial court (that, but for the Act, would have had jurisdiction) exercising jurisdiction over an Indian estate, including land on a reserve, and to direct that a matter be referred to such a provincial court. …

Indians may make wills in the same manner as non-Indians. Section 45(2) of the Act contains a dispensing power. It provides that the Minister may accept as a will any written instrument signed by an Indian in which the Indian indicates his or her wishes or intention with respect to the disposition of the testator's property on death. In Re Bernard [(1986), 1986 CanLII 4043 (NB KB), 72 N.B.R. (2d) 267 (Q.B.)], the court held that this provision allowed it to accept a will witnessed by the spouse of a beneficiary. By the same token, the Minister or a court can reject a will that does not express the deceased's wishes because the deceased lacked capacity, did not know or approve of its contents, or because the will was executed under undue influence. Section 45(3) provides that a will is not effective until approved by the Minister or until a court has granted probate of it. [Footnotes omitted]

36It has been suggested that the reasons for the regulation of the wills of Indians under the Indian Act have to do with the preservation of the Indian land base to prevent non-band members from acquiring reserve land, to discharge a Crown fiduciary obligation to preserve the estates of reserve residents, and are a vestige of the view that an Indian is a ward of the Crown: Zandra Wilson, "Wills and Estates of Indians: The Indian Act in Review" (1993) 13 Est. & Tr. J. 129, at page 130.

37One commentator notes that "The trend is for Parliament to limit the exercise of its powers [under s. 91(24) of the Constitution Act] to those matters which have historically been essential to the protection of Indian lands, such as protection of reserves from encroachment. Jurisdiction over peripheral matters such as wills and estates is increasingly anachronistic, and may even be seen as unnecessarily paternalistic on the part of Canada": Jack Woodward, K.C. & Ethan Krindle, Aboriginal Law in Canada (Toronto: Thomson Reuters, 1989), at para. 16.1. These provisions may also be seen as incompatible with modern policies of reconciliation and self-governance: Lionel J. Tupman, Arieh Bloom, & Kate Stephens, "Discrimination by Fiduciary Protection: Continuing Federal Paternalism in Aboriginal Succession and Inheritance Law" (2016) 46 Advoc. Q. 60, at p. 61.

38Under the Act the Minister has a central role over the probate of a will and other testamentary matters of a deceased Indian. Subsection 42(1) of the Act states:

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.

39In addition, s. 43 (e) of the Act states:

Without restricting the generality of s. 42, the Minister may …

(e) make or give any order, direction or finding that in his opinion is necessary or desirable to make or give with respect to any matter referred to in section 42.

40No will executed by an Indian is of any legal force or effect as a disposition of property until the Minister has approved the will or a court has granted probate under the Act. See Act, s. 45(3).

41The formalities for making a will are described in s. 45(2) of the Act:

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.

42A will may be declared void by the Minister under s. 46(1) of the Act in the following circumstances:

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.

Was the Purported Will Duly Executed by Mr. Hill Pursuant to the Indian Act, the SLRA or Otherwise at Common Law?

43This issue is broadly framed. The Applicants did not refer to any common law requirements for the execution of a will. It would appear that there are no requirements of any relevance given that the requirements for the execution of a will were codified by the English Wills Act 1837, 7 Wm. IV & 1 Vict., c. 26 which was later substantially adopted in Ontario by the Wills Act, S.O. 1873, c. 20: See Oosterhoff on Wills, at p. 12.

44The formal requirements for making a valid will in Ontario are specified by the SLRA:

Will to be in writing

3 A will is valid only when it is in writing.

Valid execution of will

4 (2) Subject to subsection (3) and to sections 5 and 6, a will is not valid unless,

(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator. …

Holograph wills

6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

Position of signature

7 (1) In so far as the position of the signature is concerned, a will, whether holograph or not, is valid if the signature of the testator made either by him or her or the person signing for him or her is placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will. …

45The formal requirements for a valid will by an Indian are described in s. 45(2) of the Act:

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.

46Thus, under s. 45(2) of the Act, the four issues to be addressed are: (1) is the will in writing? (2) is the will signed? (3) does the will indicate the testator's wishes or intentions? (4) does the will dispose of property on death?: Thorne v. Canada, 2017 FC 1116, para. 28.

47The requirements under s. 45(2) of the Act are less stringent than those found under s.4 of the SLRA which, amongst other things, require that the testator's signature be witnessed by two people.

48While s. 88 of the Act states that "… all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act … and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts", the Applicants acknowledge that the formality requirements under the SLRA do not apply to Indians: See Re Bernard, at paras. 10-11.

49In any event, s. 15 of the Regulation allows a Minister to accept a will even if it does not comply with the formal requirements for the execution of a will under provincial law. Section 15 of the Regulation states:

Any written instrument signed by an Indian may be accepted as a will by the Minister whether or not it conforms with the requirements of the laws of general application in force in any province at the time of the death of the Indian.

50Thus, the only requirements pertaining to the formal validity of a will made by an Indian are those requirements imposed by s. 45(2) of the Act. The Applicants acknowledge that the only requirement under s. 45(2) of the Act that is engaged in this proceeding is whether the Purported Will was "signed" by Mr. Hill. The Purported Will does not contain Mr. Hill's wet-ink signature. Both the Act and the Regulation are silent on what constitutes a signature on a will and similarly whether a testator's signature can be electronic or a non-original (or non-wet ink) signature.

51The Applicants submit that for a will to be accepted under the Act it must contain the testator's original or "wet ink" signature. The Respondent submits that there is nothing in the Act or the Regulation that requires that the testator's signature on a will be in wet-ink, or that it cannot be in electronic form.

52While an electronic signature satisfies the requirement for a signature under some federal legislation, the Act is not one of the few statutes for which such latitude is afforded: See Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 43.³

53The Applicants rely on paragraph 3.2.1., at page 29, of the Decedent Estates Procedure Manual (the "Manual") published by the Department of Indigenous Services which states a will may not be signed by electronic signature. This provision states:

A Will must be signed and dated by the testator. Under Section 45 of the Indian Act, does not require witnesses, only that the Will be signed and dated by the testator. The Indian Act does not speak to what constitutes a signature on a Will, or what is a signature: …

iv. a Will may not be signed by way of an electronic signature, although a number of statutes permit the signing of documents by way of an electronic signature. [Emphasis added]

54The Respondent submits that the Manual's requirement for an original signature is not binding on the Minister or this Court. I note that:

(a) There is no statutory authority for the Manual to have the force of law. Unlike other statutes that require a decision-maker to apply a policy, there is nothing in the Act which states that a decision under the Act regarding the validity of a will must "have regard to", "be consistent with" or "shall conform with" the Manual: see Train v. John Weir, et al., 2012 ONSC 5157, 299 O.A.C. 307 (Div. Ct.) at paras. 38-45.

(b) While the Department of Indigenous Services may issue guidelines in the form of a Manual without any specific statutory authority for doing so, those guidelines do not fetter the Minister's exercise of discretion in a particular case: Maple Lodge Farms Ltd. v. Canada, 1982 CanLII 24 (SCC), [1982] 2 S.C.R. 2, at p. 6; Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 1994 CanLII 2621 (ON CA), 21 O.R. (3d) 104 (C.A.), at pp. 108-109.

55In any event, the Manual suggests that a photocopy of a will, and thus a will without an original signature, might be accepted as evidence of a valid will in the Minister's discretion. The Manual states:

As a matter of policy, the Minister will not accept a photocopy of a Will or oral evidence of the decedent's intentions in place of a written Will. Rather, the estate should be administered as an intestacy. The Minister may exercise discretion and accept a photocopy of a Will, or other evidence of a written Will which has been lost or destroyed, as a last resort. …

56There is no express statement of purpose in the Act, the Regulation, or the Manual for the fewer (when compared to the SLRA) and more flexible requirements for the validity of a will made by an Indian. This less onerous approach may reflect a desire to give effect to an Indian's testamentary intentions given that "up to 90% of Indigenous peoples living on reserve die 'intestate' or without a will …[whereas] in 2022, 51% of Canadians who are not Indigenous people with status did not have a will in place": See Gwenyth Stadig & Maddi Thomas, "Estate Planning, Estate Administration, and Intestacy under the Indian Act: Practical Considerations for Legal Professionals" (2023) 43 Est Tr & Pensions J 102, at p. 124.

57On the other hand, the formality requirements for a will serve to "prevent fraud by ensuring that there is probative evidence to support a conclusion that the testator wanted to give effect to the contents of their Will": Bayford v. Boese, 2021 ONCA 442, 156 O.R. (3d) 241, at paras. 30-31.

58Again, as a threshold matter, the court must be satisfied that the testator placed his signature on the Will: Thorne, at para. 28. Otherwise, a written instrument may not be accepted as a will under s. 45(2) of the Act.

59I now turn to consider the evidence relied upon by the parties.

The Purported Will Does Not Have Mr. Hill's Original Signature

60The Purported Will presented by the Respondent does not contain Mr. Hill's original signature. As noted above, the Manual directs that neither a photocopy of a will nor an electronic signature is generally acceptable.

Is Mr. Hill's Signature on the Purported Will?

61Experts who were qualified in forensic document examination testified on behalf of the Applicants and the Respondent.

62Ms. Diane Kruger testified that the Purported Will was a non-original document in its entirety and had been produced by a laser printer, or similar office machine, using black toner. Ms. Kruger also testified that an original document would have provided greater information, under a microscope, for determination whether the signature shown on the Purported Will was made by Mr. Hill. She stated that some reproductions can show a tremendous amount of fine and subtle detail, however the signature on the Purported Will did not. Ms. Kruger testified that "the evidence falls far short of that necessary to support a definite conclusion" that Mr. Hill wrote the questioned signature. Ms. Kruger stated that the quality of the photocopy of the Purported Will was such that it was only possible to conduct a limited analysis of the signature. Ms. Kruger testified that the line quality of the signature did not provide her with sufficient information to conclude that it was a "naturally" written signature.

63Ms. Graziella Pettinati testified that there were "no fundamental dissimilarities between the questioned signature and the comparison signatures". She concluded that the evidence provides qualified support (because the original copy of the Purported Will was not available to examine) for the conclusion that the Purported Will was signed by Mr. Hill rather than someone else. Notwithstanding her qualified conclusion, Ms. Pettinati disagreed with Ms. Kruger's view that only a limited analysis of the signature was possible. On cross-examination, Ms. Pettinati confirmed that, given that only a copy of the Purported Will was available, she could not rule out that Mr. Hill's signature on the Purported Will was written at a slow speed or that someone else had traced Mr. Hill's signature onto the Purported Will.

Was Mr. Hill's Signature "Cut and Pasted" onto the Purported Will?

64Ms. Kruger testified that there were no overt signs that Mr. Hill's signature had been added to the Purported Will by using a "primitive cut and paste" [where a signature is cut out from one document and then photocopied after being pasted onto another document], a signature stamp or computer software although she could not preclude the possibility that such manipulation occurred in this case as it is not always detectable. On cross-examination, Ms. Pettinati admitted that she could not give an opinion on how the signature was affixed on the Purported Will.

65Mr. Burnham, Mr. Hammond and Ms. Catherine Haggett testified that Mr. Hill did not use computers. Mr. Hill's available personal devices were examined by an agreed upon third party expert who did not identify: (a) any document or user activity relevant to the Purported Will; (b) any discussions regarding the creation, signing or modifying of any wills; or (c) any discussions with estate lawyers in any country. There is no evidence that suggests that Mr. Hill prepared the Purported Will and applied a non-original signature to it.

Did Mr. Hill Intend to Have a Lawyer Draft his Will?

66The Applicants submit that although Mr. Hill disliked lawyers, he viewed them as a necessary evil and relied upon them in various situations.

67The Applicants submit that by October 2019, Mr. Hill had formed the intention to retain a lawyer to prepare a will for him. This assertion is based on one text message that Mr. Hill sent to Ms. Leggatt on October 16, 2019 which states "… my lawyer has been after me to do a will, with me next week he been bugging me a coupla [sic] years now, will take about 4 hrs, I will make Ryan and Jasmine in charge of things …".

68This is the only evidence of Mr. Hill expressing an intention to have a lawyer prepare a will for him. The remainder of the statement proved to be untrue as there is no evidence that he made a will that left both Ryan Burnham and Jasmine Hill (who would have been about 9 years old at that time, "in charge of things".

69Mr. Hammond testified that he had suggested that Mr. Hill sit down with him for the purpose of preparing a will every year for many years without any uptake. He recalls telling Mr. Hill in 2010 that such a meeting would take four or five hours. Mr. Hill never met with Mr. Hammond for the purpose of preparing a will.

70When this issue of preparing a will was once again raised by Mr. Hammond in October 2020, Mr. Hill simply responded that he had "taken care of it", and not that he had hired a lawyer to prepare a will for him.

71Given his dislike of lawyers, the many years that he ignored Mr. Hammond's recommendations to prepare a will, and him being a very private man, I am not satisfied that Mr. Hill intended to have a lawyer prepare a will for him.

Mr. Hill's Testamentary Intentions

72A testator's intentions are irrelevant in determining whether the formal validity requirements for a will have been satisfied: Bayford, paras. 31, 43.

73Thus, evidence at trial, primarily from Ms. Haggett, Ms. Alisha Milhim and Ms. Rayna Bayliss, that Mr. Hill loved his children equally, would split his assets equally amongst his children, and this is inconsistent with the bequests made in the Purported Will, is irrelevant as is the evidence that Mr. Hill did not treat his children equally, either in terms of his time or money, during his lifetime.

No Witnesses to the Signature

74There is no requirement that a testator's signature be witnessed under the Act, the Regulation, or the Manual. However, the fact that a testator's signature was witnessed by his lawyer and a legal assistant would have provided weight in establishing that the requirement for a signature under s. 45(2) of the Act was satisfied and that such signature was not a forgery: see Albas v. Gabriel, 2009 BCSC 198, at paras. 92-97.

Evidence of a Conspiracy?

75The Respondent submits that the Applicants do not have any tenable theory as to how the Purported Will could have come about other than through Mr. Hill's own actions given that he was allegedly the only person that had knowledge of all the relevant personal details contained in the Purported Will.

76On the other hand, it makes little sense that he would reduce his testamentary planning to a one-page document and that he would only provide a photocopy of that document to Mr. Montour. The Applicants also note that Mr. Montour testified that since he had not looked at the document in the envelope given to him by Mr. Hill, he could not confirm that the Purported Will that was produced at trial was the same document that was in the envelope given to him.

77In any event, the Applicants are not required to establish a cogent alternative theory but rather the Respondent must prove that Mr. Hill, in fact, signed the Purported Will.

78Given the evidence adduced, I find that the Respondent has not established that Mr. Hill applied his signature to the Purported Will. This is dispositive of the matter, as this means that the Purported Will cannot be accepted under s. 45(2) of the Act. However, I will address the other issues as they were raised before me.

Does This Court Have the Authority to Apply the Common Law When Determining the Validity of a Will Made by an Indian That Is Subject to the Act?

79At common law, the propounder of a will has the legal burden to establish that: (a) it was duly executed; (b) the testator had the requisite testamentary capacity; and (c) the testator knew and approved of its contents: Neuberger v. York, 2016 ONCA 191, 129 O.R. (3d) 721, at para. 77. In addition, a will may be challenged on the grounds of undue influence, forgery and fraud: See Roe v. Roe, 2024 ONCA 179 (undue influence); Smith v. Nevins, 1924 CanLII 70 (SCC), [1925] S.C.R. 619 (forgery); Mayrand v. Dussault (1907), 1907 CanLII 94 (SCC), 38 S.C.R. 460 (fraud).

80Further, upon proof that a will was duly executed with the requisite formalities, and after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents of the will and had the necessary testamentary capacity: Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876, para. 26. However, when suspicious circumstances are present which, if accepted, would tend to negative knowledge and approval or testamentary capacity, then the burden of proof in respect of knowledge and approval as well as testamentary capacity rests with the propounder of the will: Vout, paras. 25-27; Scott v. Cousins (2001), 37 E.T.R. (2d) 113 (Ont. S.C.), at para. 39.

81The Applicants submit that the Purported Will is not valid because the Respondent has failed to prove that Mr. Hill knew and approved of the contents of the Will. The Applicants further rely on the common law doctrine of suspicious circumstances for the submission that the onus to establish this requirement rests with the Respondent as the propounder of the will.

82The Respondent submits that the Act is a "complete comprehensive testamentary code" in respect of wills made by an Indian and that, as a result, the common law related to wills is inapplicable. In Canard v. Canada (Attorney General), (1972) 1972 CanLII 2392 (MB CA), 30 D.L.R. (3d) 9 (Man. C.A.), at p. 16, rev'd on other grounds 1975 CanLII 137 (SCC), [1976] 1 S.C.R. 170, Dickson J.A., as he then was, stated:

Sections 42 et seq. constitute a comprehensive testamentary code in respect of Indians. It was plainly the intention of Parliament, in enacting those sections, that provincial legislation on the subject of wills, devolution of estates and surrogate procedures applicable to other would not apply to Indians or to the administration of their estates unless the Minister so directed. [Emphasis added]

83The Applicants submit that the issuance of the Minister's Order, dated June 2, 2021, which transferred the jurisdiction to determine whether the Purported Will is valid amounted to a direction to this Court to apply the common law related to wills in addition to the law under the Act.

84The Minister's Order, made pursuant to s. 44(1) of the Act, states:

Consent to Transfer of Jurisdiction

WHEREAS Kenneth Ryan Hill, of the Lower Mohawk/Six Nations of the Grand River band, died testate on January 18, 2021;

AND WHEREAS at the time of his death, the deceased was ordinarily resident at Six Nations Reserve No. 40, in the Province of Ontario.

AND WHEREAS all of the identified beneficiaries of Kenneth Ryan Hill's estate were contacted regarding the options available in administering the estate;

AND WHEREAS four of the eight identified beneficiaries have requested that the jurisdiction over this estate be transferred to the Ontario Superior Court of Justice, the Court that would have jurisdiction had the deceased not been a registered Indian pursuant to the Indian Act and ordinarily resident at Six Nations Reserve No. 40 at the time of death;

AND WHEREAS there are a number of conflicting claims arising from the administration of this estate that make a judicial setting a preferable venue for settling this estate;

AND WHEREAS all potential beneficiaries were given notice of the request to transfer jurisdiction and were provided with an opportunity to submit written objections;

AND WHEREAS no one has submitted an objection to consent to transfer jurisdiction;

NOW THEREFORE pursuant to subsection 44(1) of the Indian Act, I hereby give my consent to the transfer of jurisdiction over the estate of Kenneth Ryan Hill to the Ontario Superior Court of Justice that would have jurisdiction had the deceased not been a registered Indian pursuant to the Indian Act.

85While there is nothing in the Minister's Order that expressly directs that this court apply the common law related to determining the validity of a will, it appears that s. 44(1) of the Act dictates that result.

86Subsection 44(1) of the Act states:

The court that would have jurisdiction if a deceased were not an Indian may, with the consent of the Minister, exercise, in accordance with this Act, the jurisdiction and authority conferred on the Minister by this Act in relation to testamentary matters and causes and any other powers, jurisdiction and authority ordinarily vested in that court. [Emphasis added]

87Thus, a Minister's Order issued under s. 44(1) of the Act grants a court not only the authority to exercise the Minister's jurisdiction and authority under the Act in relation to testamentary matters and causes but also the authority to exercise any "other powers, jurisdiction and authority" that ordinarily vest in the court.

88This authority under s. 44(1) of the Act to exercise any "other powers, jurisdiction and authority ordinarily vested" in the court, enables a court to compel the production of witnesses and documents and allows a court to weigh evidence "which is not the case with an estate being administered under the Minister's jurisdiction": See Manual, at p. 32. This same point is made in the Minister's Order which states "… a number of conflicting claims arising from the administration of this estate that make a judicial setting a preferable venue for settling this estate". Similarly, in Earl v. Canada (Minister of Indian Affairs & Northern Affairs), 2004 FC 897, at para. 15, it was recognized that the Minister's consent to the exercise of jurisdiction by the superior court is a recognition that the courts have "ampler and more effective machinery to investigate the circumstances" related to a will challenge.

89Further, the authority under s. 44(1) to exercise any "other powers, jurisdiction and authority ordinarily vested" in the court also makes applicable the common law related to the validity of a will. Under s. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA") this Court "has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario". This jurisdiction cannot be displaced absent clear and unequivocal statutory language: J. M. v. Bradley, (2004) 2004 CanLII 8541 (ON CA), 71 O.R. (3d) 171, at para. 43. Further, s. 96(1) of the CJA states that courts shall administer concurrently all rules of equity and the common law.

90The powers, jurisdiction and authority of this Court under s. 11(2) of the CJA are preserved, rather than displaced, by s. 44(1) of the Act and the Minister's Order.

91In Johnson v. Pelkey, 1997 CanLII 2935 (BC SC), 36 B.C.L.R. (3d) 40 (S.C.), the court found that a court may have recourse to the common law under s. 44(1) of the Act. In reference to Dickson J.A.'s opinion in Canard, noted above, Baker J. stated:

[103] In this case, the Minister has "so directed" by consenting to the transfer of his jurisdiction and authority to this court pursuant to section 44 of the Act. Where the consent to transfer has been given, section 44 authorizes this court to exercise not only the Minister's jurisdiction and authority under the Indian Act, but also "any other powers, jurisdiction and authority ordinarily vested" in this court.

[104] At the very least, in interpreting and applying the provisions of section 46 of the Indian Act, the court may, in my view, have recourse to the common law and seek assistance from judicial precedents considering testamentary dispositions by non-Indian persons.

92This view was followed in Albas v. Gabriel, 2009 BCSC 198, at paras. 86, 90, 98-101, where the court found that a court may have regard to the common law involving non-Indian wills, including the doctrine of suspicious circumstances and the requirement that the testator know and approve of the contents of their will, when determining whether a will made by an Indian was valid.

93I find 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 in this case in determining whether the Purported Will is valid.

Was the Purported Will Made Under Suspicious Circumstances?

94The Applicants also rely on the common law doctrine of suspicious circumstances in order to assert that the Respondent has the burden of proving that Mr. Hill knew and approved of the contents of the Purported Will. This step is unnecessary given that a rebuttable presumption that Mr. Hill knew and approved of the contents of the Purported Will does not arise because I have determined that the Purported Will was not duly executed by Mr. Hill.

95In Vout, Sopinka J. stated, at paras. 25-27:

25 … The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborneby acts of coercion or fraud. Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question "suspicion of what?"

26 Suspicious circumstances in any of the three categories to which I refer above will affect the burden of proof with respect to knowledge and approval. ... Although the propounder of the will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

27 Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder. [Citations omitted]

96Examples of the various circumstances that may be considered when determining whether there are suspicious circumstances were described in Orfus Estate v. Samuel & Bessie Orfus Family Foundation, 2011 ONSC 3043, 71 E.T.R. (3d) 210, aff'd 2013 ONCA 225, 304 O.A.C. 349, by Penny J. at para. 110 as follows:

When considering whether there are suspicious circumstances, the court may consider: 1) the extent of physical and mental impairment of the testator around the time the will is signed; 2) whether the will in question constitutes a significant change from the former will; 3) whether the will in question generally seems to make testamentary sense; 4) the factual circumstances surrounding the execution of the will; and 5) whether a beneficiary was instrumental in the preparation of the will [Citations omitted]

97There 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. Even though his use of a cellphone appeared to be limited to text messages rather than email messages, had Mr. Hill been involved in the preparation of the Purported Will, it is also odd that none of Mr. Hill's electronic devices had: (a) any document and/or user activity relevant to the Purported Will; (b) any discussions regarding the creation, signing or modifying of any wills; or (c) any discussions with estate lawyers in any country.

98I find that there are suspicious circumstances surrounding the execution of the Purported Will and, as a result, even if I had found that the Purported Will was duly executed, the onus rests with the Respondent to establish that Mr. Hill knew and approved of the contents of the Purported Will.

Did Mr. Hill Have Knowledge of, and Approve, the Contents of the Purported Will?

99As noted, at common law, the propounder of a will has the legal burden to establish that the testator knew and approved of its contents: Neuberger, at para. 77.

100Whether the testator had sufficient education to be able to read and understand the will is not key but rather the test is whether the testator fully understood what was in the will and whether the will, as written, reflected the testator's intentions: Garwood et al v Garwood et al, 2017 MBCA 67, [2017] 10 W.W.R. 158, at para. 18.

101There is no evidence that Mr. Hill knew and approved of the contents of the Purported Will particularly as there is no evidence of the circumstances (when, where, with whom, etc.) in which it was drafted and allegedly signed. The Respondent asks that the satisfaction of this requirement be inferred from the circumstances, Mr. Hammond's evidence that Mr. Hill had told him that he had "taken care of" making a will is not evidence that Mr. Hill made the Purported Will or that he knew and approved of the contents of the Purported Will. The fact that Mr. Hill had transferred certain business interests to Mr. Burnham prior to his death is not evidence that he knew and approved of the contents of the Purported Will. Mr. Montour's and Ms. Haggett's evidence that Mr. Hill had discussed with them that Mr. Burnham would take over his business interests, is not evidence that Mr. Hill knew and approved of the contents of the Purported Will. Similarly, even if Mr. Montour's evidence that Mr. Hill gave him an envelope containing the Purported Will is accepted, it does not establish that Mr. Hill understood what was in the Purported Will and that it reflected his testamentary intentions. Having regard to all the evidence, I find that the Respondent has failed to establish that Mr. Hill knew and approved of the contents of the Purported Will.

Judgment

102Order to go as follows:

(a) The Purported Will is not accepted as being Mr. Hill's will pursuant to s. 45(2) of the Act on the grounds that the Respondent has failed to establish that Mr. Hill signed it.

(b) The Purported Will is not valid at common law on the grounds that the Respondent has failed to establish that Mr. Hill knew and approved its contents.

103Any person seeking costs shall do so by filing a written submission, not to exceed three typed, double-spaced pages, together with a Bill of Costs and supporting material, within 15 days of the release of these reasons. Any response to a request for costs, subject to the same page limit, shall be submitted within a further 15 days.

Mr. Justice M.D. Faieta

Released: October 1, 2025

Footnotes

Footnotes

1. 1Federal legislation and regulations continue to use the term "Indian" and by necessity I will use that term throughout this decision in the legal sense while acknowledging that the term "Indian" is an inappropriate way of referring to Canada's Indigenous People.
2. 2Mr. Hammond went on to state that he was referring to the family law litigation involving Mr. Hill and Ms. Beaver. See Beaver v. Hill, 2019 ONCA 520.
3. 3Similarly, in Ontario a will cannot be signed electronically. See Electronic Commerce Act, 2000, S.O. 2000, c. 17, s. 31(1).