by Iain McGregor-Lowndes (TLF)
If you were to die today, what would you want to happen to your social media accounts, email, videos and photos stored on the cloud? Would you want your family to receive access to every message you have sent over the internet or would your entire internet presence be erased?
Most people do not consider how their digital existence should be dealt with after they die. Estate planning lawyers are now having to consider these issues at an increasing rate. But it is not as easy as putting in your will that you want your best friend to get all of your iCloud photos and that you want your embarrassing angst-filled MySpace profile never to resurface.
The digital nature of an online presence presents a number of legal and practical difficulties for estate planners:
- What is owned by the user and what is owned by the provider?
- How do you successfully effect the transfer in a legally binding way?
- What jurisdiction is the user and the provider in, and which should apply?
If you wanted the vinyl records you have purchased over the years to be gifted to a person of choice upon your death, this is relatively simple. However, if you wanted to do the same with the albums you purchased over the years through Apple’s iTunes, you will be left disappointed. This is because you do not purchase music through iTunes, you purchase a non-transferrable licence to access the music.
The difficulties presented by digitally stored assets were demonstrated when international best-selling author Marsha Mehran died unexpectedly in Ireland and her Australian-based father, and a beneficiary of the estate, Abbas Mehran, wanted to see whether his daughter left any literary works on her Google Chromebook. After repeatedly reaching out to Google, Mr Mehran eventually hired an attorney and filed a petition in court requesting access to his daughter’s account. Following weeks of negotiations he was granted access to over 200 documents, with the entire process taking more than a year.
These stories are not uncommon. Apple came under fire in 2016 for refusing to give a 72-year-old widow in Victoria, British Columbia the password for her late husband’s iPad to play games, demanding that she obtain a court order.
Law reform worldwide
Lawmakers are grappling with how they strike a balance between an individual’s right to post-mortem privacy, a beneficiary’s right to valuable digital assets and testamentary freedom. If balancing all these competing interests is not complicated enough, there is another further hurdle. A majority of the large internet companies are based out of Silicon Valley and have made it clear that they will not breach their privacy obligations under local law. Any changes to laws outside of that jurisdiction will likely have no effect on their practices.
In August 2014, Delaware became the first state in the United States to enact a broad law that attempts to provide clarity. Another 36 states have followed suit, enacting similar legislation dealing with digital assets. Most importantly, the ‘Revised Uniform Fiduciary Access to Digital Assets Act’ came into force on January 1, 2017 in California.
The Act creates a preference for ‘online tools’, such as Google Inactive Account Manager or Facebook legacy contact system, which will take precedence for access to digital assets against a contrary provision made in a will, even if the will was executed at a later date. The Act also allows the appointment of a ‘personal representative’ to receive disclosure of digital assets in the case that no ‘online tools’ are available or they have not been used. However, the Act has been criticised for being overly protective of internet companies as, among other favourable provisions, they may still insist upon a court order before releasing anything.
In an era of escalating digitisation, it is difficult to predict what the future holds for estate planning, will the law be able to adapt quickly enough to the lightning pace of technological innovation, or will new problems emerge at a greater rate than they can be handled by traditional legal systems? Only time will tell with the support of you entering the profession to remind estate lawyers how these digital assets can or cannot be transferred.
 Apple, iTunes Terms and Conditions, <https://www.apple.com/legal/internet-services/itunes/us/terms.html
 The Mercury News, Who owns your digital afterlife, 28 August 2015, Matt O’Brien <http://www.mercurynews.com/2015/08/28/who-owns-your-digital-afterlife/>
 CBC News, Apple demands widow get court order to access dead husband’s password, 18 January 2016, Rosa Marchitelli, <http://www.cbc.ca/news/business/apple-wants-court-order-to-give-access-to-appleid-1.3405652>.
 Uniform Law Commission, Fiduciary Access to Digital Assets Act, Revised, (2015) <http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revised%20(2015)>.
 CA Prob Code ∮ 873(a)