While digital assets constitute “property” in the sense appearing within provincial legislation, the rights of fiduciaries in respect of these assets are less clear than those relating to tangible assets. For example, in Ontario, the Substitute Decisions Act, 1992, and Estates Administration Act provide that attorneys or guardians of property and estate trustees, respectively, are authorized to manage the property of an incapable person or estate, but these pieces of legislation do not explicitly refer to digital assets.
As we have previously reported, although the Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act in August 2016, the uniform legislation has yet to be adopted by the provinces of Canada. However, recent legislative amendment in one of Ontario’s neighbours to the west has recently enhanced the ability of estate trustees to access and administer digital assets.
In Alberta, legislation has been updated to clarify that the authority of an estate trustee extends to digital assets. Alberta’s Estate Administration Act makes specific reference to “online accounts” within the context of an estate trustee’s duty to identify estate assets and liabilities, providing clarification that digital assets are intended to be included within the scope of estate assets that a trustee is authorized to administer.
In other Canadian provinces, fiduciaries continue to face barriers in attempting to access digital assets. Until the law is updated to reflect the prevalence of technology and value, whether financial or sentimental, of information stored electronically, it may be prudent for drafting solicitors whose clients possess such assets to include specific provisions within Powers of Attorney for Property and Wills to clarify the authority of fiduciaries to deal with digital assets.
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Other blog posts that may be of interest:
For many Canadians, one or more life insurance policies represent an important component of an estate plan. If a policy cannot be honoured as a result of the cause of the insured’s death, this may completely frustrate his or her testamentary wishes.
The terms of life insurance policies typically address the issue of whether a beneficiary will be entitled to the insurance proceeds in the event that an individual commits suicide. Policy terms typically include a restriction as to the payout of the policy if the insured dies by his or her own hands within a certain of number of years from the date on which the policy is taken out (most often two years).
With the decriminalization of physician-assisted death, there was initially some concern regarding whether medical assistance in dying would be distinguished from suicide for the purposes of life insurance. The preamble to the related federal legislation, however, distinguishes between the act of suicide and obtaining medical assistance in dying.
As mentioned by Suzana Popovic-Montag in a recent blog entry, the Canadian Life and Health Insurance Association suggested in 2016 that, if a Canadian follows the legislated process for obtaining medial assistance in dying, life insurance providers will pay out on policies that are less than two years old. Since then, the Medical Assistance in Dying Statute Law Amendment Act, 2017 has come into force to provide protection and clarity for Ontario patients and their families. This legislation has resulted in amendments to various provincial legislation, including the Excellent Care for All Act, 2010, a new section of which now reads as follows:
…the fact that a person received medical assistance in dying may not be invoked as a reason to deny a right or refuse a benefit or any other sum which would otherwise be provided under a contract or statute…unless an express contrary intention appears in the statute.
The amendments provided for within the legislation introduced by the Ontario government represent an important step in the recognition of physician-assisted death as a right that is distinguishable from the act of suicide. They also confirm the right of individuals who access medical assistance in dying to benefit their survivors with life insurance policies or other benefits.
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Other blog posts that may be of interest:
In December 2016, Ontario repealed the old Escheats Act, replacing it with two separate pieces of legislation, the Escheats Act, 2015 (the “EA”), which pertains to property of individuals who die without heirs, and the Forfeited Corporate Property Act, 2015 (the “FCPA”), which deals with the undisposed-of property of dissolved corporations. In so doing, the legislators appear to have increased the record-keeping burden on Ontario corporations and further expanded the Crown’s power to seize forfeited property via escheat.
Several related amendments to separate acts were introduced along with the FCPA. Specifically, a new section (140(1)(e)) incorporated into the Ontario Business Corporations Act (the “OCBA”) requires corporations to maintain a current register of their interests in land, as well as copies of deeds, transfers and other related documents. In his paper, “Ontario Corporations Beware: Changes to the Law Regarding Record Keeping and Forfeiture of Corporate Property,” Jeffrey Alpert points out that corporations with extensive real estate holdings stand to absorb a substantial administrative burden. As this section stipulates that the register of ownership interests in land must be located at the corporation’s registered office, it would also inconveniently obligate any corporations who outsource their “registered office” to their lawyer or accountant to constantly communicate the relevant, up-to-date information to those individuals.
The legislative changes further boost the Crown’s right to control escheated property. Firstly, upon seizing such property, the Crown can unilaterally terminate any encumbrances. The Crown is required to notify the sheriff and execution creditors of its intention to cancel. Whether such notice will serve as a practical deterrent, however, is unclear. Furthermore, the Crown now boasts near absolute power to seize and put to use forfeited corporate property. While not explicitly stated as such, the legislation essentially allows the Crown, post dissolution, to negate the claims of relief seeking parties and any secured creditors with interests in the forfeited corporate property. If the Crown gives notice for such action as required, those with interests in the pertinent property would have to act immediately to maintain those interests. Lawyers with clients in this position should therefore be clear and prompt in communicating the consequences of the Crown’s actions.
Although we don’t often come across these kinds of situations in our practice, when we do, it’s important to be aware of these recent changes. For an excellent article summarizing the changes, I refer you to this blogpost: Ontario dusts off the escheats rulebook – time to dust off your advice?
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Later this week, House Bill 432 will come into effect in Ohio to update state estate and trust administration law. One of the most notable updates is the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act, along with corresponding updates to Ohio’s Power of Attorney Act.
The American Revised Uniform Fiduciary Access to Digital Assets Act is intended to formalize the authority of attorneys for property and estate trustees to obtain access to digital assets for deceased or incapable users. Prior to its implementation in American states (and in other jurisdictions in which comparable legislation has not yet been introduced), the intervention of the courts has often been required to grant fiduciaries with access to information and assets stored electronically. There continues to be some debate as to whether an attorney for property or estate trustee, authorized to administer tangible property, also has the authority to manage digital assets without legislation and/or terms of the Power of Attorney or Will explicitly extending this authority.
Interestingly, the Revised Uniform Act has been endorsed by Google and by Facebook, both platforms on which a great deal of the world’s digital assets are stored. In 2016, 13 states introduced the Revised Uniform Fiduciary Access to Digital Assets Act. With the introduction or enactment of the Revised Act in another 24 states since the beginning of 2017 alone, it is clear that state legislatures and online service providers alike agree that amendments to the law in recognition of the growth of technology is required to clarify the state of the law of digital assets and fiduciaries.
The Uniform Law Conference of Canada introduced the Uniform Access to Digital Assets by Fiduciaries Act (2016) this past summer. While the uniform acts of Canada and the United States share a number of similarities, there are several important distinctions, which will be highlighted in Thursday’s blog post.
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Other blog posts that may be of interest:
Accessing a Testator’s digital assets can be fraught with difficulty. Part of this difficulty involves the service agreements between the Testator and the service provider. These agreements often prevent the service provider from disclosing the Testator’s personal information.
Recently, Florida, following a trend in the United States, passed Bill SB 494, now known as the Fiduciary Access to Digital Assets Act (the ‘Act’). The legislation defines a digital asset as “……an electronic record in which an individual has a right or interest. The term does not include an underlying asset or liability unless the asset or liability is itself an electronic record.” It also provides of a definition of a fiduciary, which means “an original, additional, or successor personal representative, guardian, agent, or trustee.”
The Act appears to have two main purposes. It confers authority upon appointed fiduciaries to access and manage both digital assets and electronic records. The legislation also allows custodians of this information to disclose it to appointed fiduciaries where the procedural requirements have been met.
The Act includes a priority system for an individual to control the disclosure or non-disclosure of any or all of their digital assets or electronic communications. Depending on the circumstances, a direction for disclosure given through the use of an online tool may override a direction embodied in a Testator’s estate planning documents.
This Act incorporates model legislation drafted by the Uniform Law Commission. The draft legislation is currently being considered by a number of other state legislatures. The Act is effective in Florida as of July 1, 2016 and may apply retroactively to some individuals in certain capacities.
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The Canadian government, after receiving a four month extension for passage of Bill C-14, which enables medically assisted suicide, will not meet today’s deadline set out by the Supreme Court of Canada. The Bill has passed its second reading in the Senate and has obtained agreement in principle. Yet, after this vote, the Senate adjourned its hearing until June 7th. As previously blogged, the Bill is a result of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General) 2015 SCC 5, where the Supreme Court ruled that the blanket criminal code provisions prohibiting physician assisted suicide were unconstitutional. The federal government was initially given a year’s time to put in place remedial legislation, and recently received a four month extension to this deadline. In granting the extension, the majority of the Court stated that it would be unfair to those who already qualify based on Carter to delay the legislation any longer.
Despite this, as of the end of today, physicians and patients will be left in legal limbo. While guidelines have been provided to doctors across the provinces, these could be the cause of significant variation in medical practice.
There are already concerns about the constitutional validity of the proposed legislation. The Alberta Court of Appeal in Canada (Attorney General) v. F. (E.), 2016 ABCA 155 considered the Supreme Court’s guidance in Carter and found that Carter did not limit applications for physician assisted suicide to only those who were terminally ill. It rejected the Attorney General for Canada’s argument that these limits could be inferred from the language in the Carter decision.
The Alberta Court of Appeal found that any attempt to read restrictions into the Carter decision would have to take into account the balance of values struck in Carter: autonomy and dignity of the applicant on one hand, and the sanctity of life and protection of the vulnerable on the other. The Court found that because of these important interests, it would be inappropriate to exclude, by inference, those who meet the criteria in Carter, and were never expressly excluded by the Supreme Court’s decision. The Court of Appeal also found that the Supreme Court did not exclude mental illnesses as the basis for application.
The Bill, as it is currently written, appears only to allow those who are terminally ill to apply. It will be interesting to see whether at this late hour any revisions will be made to the legislation to avoid the obvious challenge to its constitutional validity. Any such revisions will only increase the delay and uncertainty that will exist as of the end of today.
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A Bill known as Senate File 2112 that was recently passed by the Iowa legislature has the potential to enhance the access of fiduciaries to digital assets. As it currently stands in Iowa, many other states, and Canadian provinces including Ontario, the law has not been formally amended to reflect technological advancement and the prevalence of digital assets in estate administration. This represents a major problem in situations where an individual has not considered his or her digital assets when creating or updating an estate plan. The result is most often that digital assets and online accounts are inaccessible or accessible only after a Court Order is obtained, a process that may add significant time and cost to an otherwise simple estate administration.
Senate File 2112 provides that fiduciaries, which class is explicitly stated to include estate trustees, guardians, and those authorized to act under a power of attorney, may access digital information on behalf of an incapable or
deceased person who has authorized them to do so.
In circumstances where there is no written direction granting access of the fiduciary to the user’s information, an estate trustee is permitted to access a deceased person’s digital assets upon providing the following to the custodian of the assets:
- A written request for disclosure;
- A certified copy of the death certificate;
- A certified copy of probate, an affidavit made pursuant to the Bill, or a file-stamped copy of the court order authorizing the fiduciary to administer the estate; and
- If requested by the custodian of the assets, any of the following:
- A username or other unique account identifier to identify the user’s account;
- Evidence linking the account to the user;
- An affidavit stating that the disclosure of the digital assets is reasonably necessary for administration of the estate; and/or
- A finding by the court that either (1) the user had a specific account with the custodian of the assets, or (2) disclosure of the digital assets is reasonably necessary for administration of the estate.
The provisions of the bill are intended to apply unless the power that it provides is restricted by Court Order or limited within the document appointing the fiduciary.
Until similar legislation is enacted in Ontario, drafting solicitors should remember to canvass the important issue of digital assets and accounts when assisting clients in creating or updating estate plans to prevent inaccessibility during incapacity and/or following death.
Have a great weekend.
British Columbia’s new Wills, Estates and Succession Act received Royal Assent on October 29, 2009. This new Act is a comprehensive statute designed to modernize and streamline the making of Wills and the administering of estates in British Columbia.
Changes will include:
- Introducing a simplified procedure for administering small estates;
- Using the term “will-maker” instead of “testator”;
- Incorporating succession law concepts currently found only in case law (such as those that apply to adopted children);
- Granting the court the power to rectify a Will in certain situations, to ensure that a will-maker’s last wishes are respected; and
- Abolishing the presumption that a gift given by the will-maker during his/her lifetime to a child is an advancement of a gift in the will – instead, such a gift would take effect according to its terms.
The new Act is expected to come into force sometime in 2011, which will allow time for the public and legal community to review and prepare for the new legislation.
Wills made before the new Act comes into effect will not be invalidated, but the new Act will apply to the interpretation of existing Wills. This may lead to a flurry of demands to update existing Wills, so that a will-maker’s longstanding wishes are not inadvertently thwarted by the new statute. More information can be found at www.ag.gov.bc.ca/justice-reform-initiatives.
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Bianca La Neve
Bianca V. La Neve – Click here for more information on Bianca La Neve.
This week on Hull and Estates, Rick Bickhram and David Smith discuss how changes in the definition of marriage have impacted Estate Law and Estate Administration.