In our increasingly digital world, the concept of assets extends beyond physical possessions to include a wide range of digital assets. Ontario, a province known for its progressive approach to technology, has been slow to adapt to the evolving landscape of digital assets within the context of estate planning. In this blog post, I explore how other jurisdictions have responded to digital assets while Ontario is at risk of falling behind.
The United States was quick to act: the Uniform Fiduciary Access to Digital Assets Act (the “Uniform Act”) was approved in 2014, revised in 2015, and is presently enacted in over 47 states. In 2016, the Uniform Act was adopted by the Uniform Law Commission of Canada (“ULCC”) as the model legislation, providing a precedent act for provinces and territories. In essence, the Uniform Act provides a fiduciary the right to access all digital assets belonging to the deceased, unless specified otherwise in the will. In addition to Saskatchewan and Prince Edward Island, New Brunswick recently became the third province to adopt the model legislation.
In December 2022, New Brunswick enacted the Fiduciaries Access to Digital Assets Act (the “Act”), which largely follows the Uniform Act. The Act provides greater clarity and predictability for fiduciaries as it gives them the right to access the digital assets of the account holder while being subject to the same legal duties and limits for existing tangible property. Fiduciaries are given the additional power to take any action concerning a particular digital asset that could have been taken by the account holder themselves; this right also extends to tangible property under the fiduciary’s authority, like a laptop or cellphone. Notably, the Act affords fiduciaries protection from actions or proceedings made against them, so long as they acted in good faith.
Almost ten years after the United States approved legislation to address digital assets in estates, and over six months after Canada’s third province enacted similar legislation, Ontario has yet to act. As such, Ontarians must take matters into their own hands in order to protect their digital assets after death. As technology continues to shape our lives, it is crucial for individuals to proactively consider and address their digital assets through estate planning. By acknowledging the unique challenges and seeking legal guidance, Ontarians can mitigate risk to their digital assets while preserving their memories and financial interests for future generations. As digital assets continue to gain prevalence on a global scale, Ontario must continue embracing progress or risk falling behind.
Thanks for reading.