We have previously blogged extensively on the issue of inaccessibility of digital assets and the absence of legislation in Canadian provinces, including Ontario, to clarify the rights of a fiduciary to access and administer digital assets on behalf of a deceased or incapable rights holder.
While the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of properties and estate trustees, respectively, are authorized to manage the property of an incapable person or an estate, Ontario does not currently have any legislation that clarifies these rights by explicit reference to digital assets. While continuing powers of attorney for property and wills can be crafted to explicitly refer to digital assets and the authority of an attorney for property or estate trustee to access accounts and information in the same manner in which the user him or herself was able, access issues can still arise during incapacity or after death.
A recent CBC article highlights the inadequacy of legislation facilitating access to digital assets. A surviving wife of over forty years was the estate trustee and sole residuary beneficiary of her late husband’s estate. In seeking access to an Apple account that she shared with her husband, she was told that she would require a court order, even after providing Apple with a copy of her husband’s death certificate and will. Apple cited the United States’ Electronic Communications Privacy Act, which predates the prominence of computers and the internet in our daily lives, as prohibiting them from distributing personal electronic information. Four years after her husband’s death in 2016, the Ontario woman is now obtaining pro bono assistance in seeking a court order granting access to the shared account in the absence of any other options.
It is anticipated that the adoption of the Uniform Law Conference of Canada’s Uniform Access to Digital Assets by Fiduciaries Act would resolve some or all of the issues currently faced by Ontario residents in accessing and administering digital assets. However, now over four years since its release, only Saskatchewan has implemented provincial legislation mirroring the language of the uniform act.
It will be interesting to see in coming years whether legislative updates will address continued barriers to the access and administration of digital assets and the corresponding access to justice issue.
Thank you for reading,
Other blog entries that may be of interest:
Digital assets and passwords for on-line accounts are an important consideration in estate planning. A recent CBC article, found here referencing a situation experienced by a woman named Peggy, highlights the difficulties that may arise in failing to include such assets and information in an estate plan.
Peggy was the sole estate trustee and beneficiary of her husband’s estate. Although Peggy knew her husband’s log-in code to his iPad, she did not know the Apple ID password, which is required to download apps from the App Store. As such, Peggy was unable to re-download her card game app once it stopped working.
Although Peggy could have created a new Apple ID (username and password), it meant that she would have had to re-purchase everything under her husband’s account. As such, to avoid this, Peggy contacted Apple in order to obtain the Apple ID password. Although Apple had initially requested that Peggy provide the Will and death certificate, they later required a Court order before releasing such information.
The good news is that Apple is currently assisting Peggy and is no longer requiring her to obtain a Court order. However, the process has taken many months, and understandably caused Peggy considerable frustration as she considered this to be a simple problem. She just wanted to play her digital card game.
As no such digital asset law exists yet in Ontario, corporations such as Apple, Facebook, and Gmail, are left to their own devices when addressing digital asset ownership and succession.
At this point in time, I have no hesitation in saying that almost all of us have Apple (or Android) products, and rely on Facebook and Gmail accounts. The importance of addressing such assets in an estate plan is therefore clear. Although there are a myriad of products which can assist in managing associated passwords, this is just one step in preparing a thorough estate plan. An experienced lawyer can assist to ensure that all types of digital assets are addressed, that a testator’s instructions are clear and definitive, and proper wording is included in a Will.
There has been so much that has been recently written about the release of the iPad and more recently, the new iPhone 4G. Some may remember that an Apple Software Engineer who was working on the iPhone 4G accidentally forgot the Smartphone at a local bar, prior to its release date. Gizmodo, known as a leading technology weblog about consumer electronics, purchased the Smartphone from the finder and published exhaustive details about many of its new features, thereby stealing some of the thunder from the creators of the iPhone.
Smartphones are certainly the hottest thing going forward in social, business and technological circles, and its time for us to start thinking about the revolution it has had on our lives.
Thanks to Smartphones, most lawyers are now mobile. I read an article in the most recent LawPRO magazine named “Essential Smartphone apps for Lawyers”. For those of us who are not familiar with technological jargon, an app is short for “application software”, which is downloaded to a Smartphone. Some essential apps described in this article were: “Documents To Go”, which, among other things, allows lawyers to view and edit Microsoft Word, Excel and PowerPoint files, and “Timr”, another app referred to in this article, allows a lawyer to track their time and mileage.
Smartphones have certainly made life convenient, but as lawyers it is scary to think about the privacy issues associated with all of the personal and client data that we store on them. With just a push of a button or a poke at the touchscreen, pretty much anyone who got hold of your phone could read your email, see pictures of you, your family etc. Smartphone’s contain far more personal data than would ever have been accessible on older mobile phones, now coined as the “dumbphones”.
Most of our privacy concerns can be remedied, which is as simple as enabling your security passcode, thereby locking your phone so that anyone who steals it or finds it if you have misplaced it cannot gain access.
Thank you for reading and have GREAT weekend,
Rick Bickhram – Click here for more information on Rick Bickhram.