Nunavut

Nunavut's court is unlike any other in Canada. The Nunavut Court of Justice, created on 1 April
1999, is the country's only unified single-level court: it exercises the powers of what would
elsewhere be both the superior court and the territorial court. Probate applications go there, under
the Probate and Administration Rules of the Nunavut Court of Justice.

The grant

The executor applies for a grant of probate, which proves to land registry offices, banks and
investment dealers that the will has been certified and that the executor is the estate's legal
representative. Where there is no will, or no executor able and willing to act, the court grants
letters of administration.

Where Nunavut's statutes come from

At division in 1999, Nunavut adopted the statutes of the Northwest Territories — which is why its
Wills Act is still cited as an NWT statute. Amendments since 1999 apply only to the territory that
made them, so an NWT act and a Nunavut act with almost identical citations may no longer read the
same. Check the Nunavut consolidation, not the NWT one.

What gets filed

• The original will, with an affidavit of execution.
• Proof of death.
• An inventory of assets and liabilities at date-of-death values.
• The application, and notice to those entitled.

Before distributing

Property held jointly with right of survivorship, and registered plans or insurance with a named
living beneficiary, pass outside the estate. Obtain the Canada Revenue Agency clearance
certificate first. Land and benefits arising under the Nunavut Agreement may be governed by
that agreement rather than by ordinary succession law — check before distributing.

Nunavut's Wills Act is inherited from the Northwest Territories. A will must be in writing,
signed by the testator, and signed by two witnesses present when the testator signs. A
holograph will — wholly in the testator's own handwriting and signed by them — is valid, with
no witnesses.

Valid here; often not elsewhere

Holograph wills are recognised in Nunavut and in the other territories, but not in every province —
British Columbia and Prince Edward Island do not accept them. For a territory where a great many
people have family, property and medical care in the south, that is a practical problem, not a
technicality. A handwritten will is a reasonable stopgap and a poor permanent arrangement.

The witness who inherits

A gift to a witness, or to that witness's spouse, fails while the will itself stands. Use two neutral
witnesses.

Age and capacity

The general rule is the age of majority, with narrow exceptions. Capacity is judged at the time of
signing.

Points specific to Nunavut

• Interests under the Nunavut Agreement, and land held as Inuit Owned Land, may pass under
  rules in the agreement rather than under ordinary succession law. Ask before assuming a will can
  direct them.
• Custom adoption is recognised in Nunavut, and a customary adoptee's position under a will or on
  an intestacy is not something to leave to inference. Name people expressly.
• Choose an executor who can realistically act, given that communities are fly-in and the registry
  is in Iqaluit.

Also

• Name an alternate executor, and say where the original will is kept.
• Review after a marriage, separation, divorce, birth or a move out of the territory.

Yes. An executor in Nunavut may be paid for administering the estate.

The standard

There is no statutory percentage. The executor is entitled to fair and reasonable compensation,
assessed on the value of the estate, the time spent, the responsibility assumed, the skill required,
the complexity and the results achieved. The convention is to start from a percentage of the capital
of the estate plus a percentage of the income collected, and then test whether the total is actually
reasonable. It is a starting point, not an entitlement.

How it gets approved

Compensation is either agreed in writing by all the beneficiaries, or approved by the Nunavut
Court of Justice when the executor passes accounts. Agree it in writing before taking it.

Where consent cannot be given

If a beneficiary is a minor or cannot manage their affairs, consent is unavailable and the executor
should expect to pass accounts, with the Public Trustee entitled to be heard.

If the will fixes a figure

The will governs, provided the executor accepts on those terms. A legacy to the executor may be meant
in place of a fee — read the clause.

Compensation is not travel money

In a territory with no road connections between communities, this is the point that matters most.
Flights to Iqaluit or a home community, accommodation, and freight are expenses, reimbursed in
full and claimed separately. Compensation pays for the executor's time and responsibility. Folding
one into the other leaves the executor out of pocket and makes the accounts harder to justify.

Tax

Compensation is taxable income to the executor; an inheritance is not.

A Nunavut executor is reimbursed out of the estate for the reasonable out-of-pocket costs of
administering it, separately from compensation for their time. Here, more than anywhere else in
Canada, the expenses can dwarf the fee — and they are properly claimable.

Normally claimable

• Funeral, burial or cremation, and a gathering in proportion to the estate. Repatriation of
  remains between communities, or from a hospital in the south, is a real and claimable cost.
• Court and probate fees, and certified death certificates.
• Legal fees for the application, and accounting fees for the final T1 and any T3 trust return.
• Appraisals of property, vehicles, snowmachines, boats, ATVs, equipment, tools and carvings.
• Carrying costs on estate property until it is dealt with: insurance, utilities, heating fuel,
  security and maintenance.
• Cleaning, clearing, storing, and shipping contents by air or sealift, which is expensive and
  frequently the only option.
• Travel on estate business — scheduled flights between communities, charters where nothing else
  flies, accommodation and meals while travelling on estate business.
• Interpretation and translation where beneficiaries or documents require it.
• Postage, couriers, bank charges, and bond premiums where a bond is required.

Normally not claimable

• The executor's lost wages, meals at home, or personal spending — compensation covers those.
• Costs run up for one beneficiary's convenience rather than the estate's.
• Improvements beyond preparing a property for sale as it stands.
• Anything without a receipt.

The rule that decides it

Open an estate bank account, run everything through it, and keep a dated log of every flight and
every shipment with the reason for it. A southern reader will find these numbers startling; the log
is what shows each one was necessary.

Nunavut estates are almost always administered by family. Trust companies do not maintain offices
here, and the practical question is not whether to appoint a professional but how much professional
help the family executor needs, and who pays for it. The answer to the second part is the estate.

Consider professional involvement when

• Interests arise under the Nunavut Agreement or in Inuit Owned Land, where succession may be
  governed by the agreement rather than by ordinary law.
• Custom adoption affects who inherits, and the will is silent or ambiguous.
• The named executor lives outside the territory — common, and hard, given that every community is
  fly-in and the registry is in Iqaluit.
• The estate holds an operating business, a hunting or outfitting operation, or an arts and carving
  inventory that needs valuing and selling properly.
• A beneficiary is a minor or an adult who cannot manage money, bringing in the Public Trustee.
• There is conflict among the beneficiaries, or a challenge to the will looks likely.

What it costs

Expect hourly billing from a lawyer in Iqaluit, or from southern counsel who practise in the
territory. A trust company, if one will act at all, will quote a percentage with a minimum fee that
most Nunavut estates cannot justify. Ask in writing before appointing anyone.

Middle options

• Appoint a family member and let them retain counsel at the estate's expense. This is the normal
  arrangement.
• Pair a family member in the south with someone in the home community who can attend in person and
  interpret where needed.
• Name an alternate, so the estate does not default to the Public Trustee.

An executor who does not want the role can renounce — but only before they begin dealing with the
estate.