Late mother’s wish to leave band-owned home to grandchildren leads to lawsuit between brothers

A fight over who gets to occupy his late mother’s band-owned home and whether legal wills are recognized on First Nations has led to one man taking his two brothers to court.

The ordeal started two years ago when Jason Hocaluk became the executor of his mother’s will.

His mother, Doreen Hocaluk, died of cancer in March 2020. In her will, Doreen named her granddaughter and grandson, who are Jason’s niece and nephew from his late sister, as who she hoped would occupy her home in Brokenhead Ojibway Nation, about 60 kilometres northeast of Winnipeg, after she died.

She also wanted the assets within the house divided; if the division couldn’t be agreed upon, she wanted the items sold and the proceeds added to the residue of her estate. 

But in March of this year, Jason filed a statement of claim against two of his brothers, Allen and Lawrence Hocaluk, Brokenhead Ojibway Nation and its housing authority, alleging they didn’t follow through with his mother’s wishes as laid out in her will. 

What are the rights to band-owned homes?

Conflict over who gets to occupy his late mother’s band-owned home — and whether legal wills are recognized on First Nations — has led to one man taking his two brothers to court.

“The upsetting part is they just didn’t give me a chance to do my due diligence as executor, to go into my mother’s house, go through all her assets like I was supposed to — and do her wishes like I promised her,” he said.

He alleges Lawrence unlawfully lived in his mother’s home for 18 months and damaged her property while he was there. The claim also alleges that Allen used his influence as a band councillor to keep the housing authority from kicking Lawrence out.

“I let my mother down,” Jason said. “Because some people that are not on the will went in there and basically just took it over.” 

In an emailed statement to CBC, Allen’s lawyer said he could not comment as the issue is before the courts. Attempts to contact Lawrence, the housing authority, the chief of Brokenhead Ojibway Nation, as well as Jackie Pommer, director of operations and their representation went unanswered.

Timeline of events 

Problems began the day after Jason’s mother died, according to the timeline outlined in the statement of claim. First, Allen attempted to go into the home — and over the next few days Lawrence twice broke inside. 

Then, while Jason and other family members were at Doreen’s funeral, Lawrence and his partner moved into the home, the statement of claim alleges.

At that point, Jason had already notified the community’s director of operations that he was named as executor of his mother’s will — and the housing authority had acknowledged the document and affirmed its intention to honour Doreen’s wishes. 

But for the next 18 months no one removed Lawrence from the band-owned home, despite Jason’s requests to the housing authority. 

Instead, Jason alleges the housing authority offered him shifting excuses — and it wasn’t until Sept. 21, 2021, that RCMP and the housing authority kicked Lawrence out.

Influence as a band councillor

By that time, Lawrence had damaged, destroyed, given away or sold many of Doreen’s belongings, according to the statement of claim, including a lawnmower, jewelry, appliances, medical equipment, family mementos and photographs. 

In an interview, Jason said he had hoped to recover photos of himself and his mother from her home but was unable to find them.

In his statement of claim, Jason alleges his brother Allen used his authority as a council member to persuade the band’s director of operations and head of security to allow Lawrence to unlawfully occupy the home.

Allen was elected as a Brokenhead band councillor on April 18, 2020, a few weeks after his mother’s funeral. 

What are the rights to band-owned homes? 

When it comes to community-owned housing on First Nations, Indigenous Services Canada (ISC) spokesperson Madeleine Warlow said that the department encourages all people living on reserve to prepare a will. 

Occupancy of First Nations-owned homes is not governed by the estate provisions of the Indian Act, Warlow said in an email, noting that it is a matter governed by each First Nation. 

But Doreen’s will and testament was probated by Indigenous Services Canada, which means they approved it.

In an infographic on the ISC website, it states that less than nine per cent of people who die on reserve have a will. When asked about this, Warlow said ISC does not track this information. 

Tuma Young is a L’nu lawyer and professor in Nova Scotia who works on wills and estates cases. Usually in these types of cases, he said, the band will honour the will — but band-owned homes cannot actually be willed to someone. 

“Generally speaking, you cannot leave items in your will to anybody if you don’t own them,” he said, regarding Doreen’s home. 

Young suggests using an Anishinaabe approach and applying traditional laws on descent of property to resolve the dispute, rather than court. 

“When people say we don’t own anything, that’s not true. I tell people we do have concepts of ownership. It’s in our language, it’s in our laws, it’s in our songs, ceremonies. If you go to a sweat lodge, you’re gifted with something, that’s a transfer of ownership. It could be an eagle fan, it could be regalia or it could be a house.”

Jason has filed for damages against his brother Allen for no more than $100,000 for negligence, breach of fiduciary duty, spoliation, misfeasance, or unlawful use of public office.

Allen filed a statement of defence Wednesday, which denies all major claims made against him. In it, he asks for proof of the allegations, and asks the court to dismiss the relief sought by his brother, including all damages. 

An affidavit was also filed by Jason against his brother Lawrence to note him in default for not yet filing a statement of defence.