Tag: Social Media
For those who are about to enter, or are in the very midst of, a long and arduous legal dispute, beware the ineffaceable nature of social media activity. The sands of time might erode Rome and the Pyramids, but they will bounce off the public record of your impassioned posts and hyperbolic tweets. Keeping in mind that such evidence lasts forever, and is also readily accessible, devoid of context, and cheap to procure, litigants may be wise to keep their online communication to a minimum – lest they spoon-feed their opponents material that could later prove hamstringing and self-defeating.
In recent years there have been stories about criminals sharing their crimes with the world via Facebook Live. In family law, we have seen a support claimant attain more support by citing a payor’s lavish life on Instagram, and a father’s custody compromised by his errant Youtube video. In estates law, where there is often mystery and ambiguity involved with testamentary intention, and much of the evidence is “he-said-she-said” – in other words, uncorroborated parole evidence tainted by self-interest – parties scramble for whatever concrete material they can find, such as a screenshot of a social media tirade.
In one recent Ontario decision (Lyons v. Todd,  O.N.S.C. 2269), a man not only dragged out litigation against his sister, who was the estate trustee, but engaged in a campaign of harassment, menaces, and defamation – all of which the court was able to scrutinize with ease:
“The transcription of voice messages, copies of emails and other social media posts, establish that Bob threatened to make what he described as Victoria’s ‘perverted’ sex life public. He threatened to expose her to the clients of the Park and bankrupt her with the costs of litigation if she did not settle. With some of the Facebook posts, he posted the location of the Park.”
The court did not accept the man’s argument that the posts were unrelated to the proceedings, finding instead that the “gratuitous humiliation and embarrassment” the estate trustee suffered was a further reason for which she should receive the $60,000 in costs that she requested.
In Nova Scotia (Public Safety) v. Lee,  N.S.S.C. 71, a man came under the fire of CyberSCAN and the Director of Public Safety, which are government bodies mandated with the policing, punishment and prevention of cyberbullying. The man was purportedly vexed with his sister, who was the sole beneficiary of the mother’s will. The rambling posts were addressed to “anybody out there in Facebook land” and the “cowards in my family”, but in fact the speech was tantamount to a naked admission before a stern court.
The frustrated litigant or potential litigant who needs to vent would be safer, and likely more satisfied, by confiding his or her troubles to a friend in a private setting rather than airing from a veritable rooftop grievances which will echo for the end of time.
Thank you for reading,
Ian Hull and Devin McMurtry
Business Insider recently reported that 2.1 billion people access at least one of the Facebook, Messenger, Whatsapp or Instagram apps every day. That’s a little less than a third of the world’s population.
These platforms allow us to share various aspects of our lives. Some of us use them to document everything. But what happens to these accounts when a user passes away? Do their accounts remain on these platforms forever or can they be removed? Let’s take a look at four of the biggest social network platforms to see what their policies say.
Facebook users have the option of having their account permanently deleted or appointing a legacy contact to look after their “memorialized account.” A legacy contact is someone who is chosen to oversee an account if it is memorialized. The legacy contact must be 19 years or older. They can accept friend requests on the deceased’s behalf, pin tribute posts and change the account’s profile picture and cover photo.
Key features of memorialized accounts include the following:
- The word “Remembering” will appear next to the person’s name on their profile
- No one can log into the account
- The account will not appear in public spaces such as friend suggestions
- Content that was shared on Facebook while the deceased was alive will remain visible to the audience it was initially shared with
- Depending of the deceased’s privacy settings, friends of the deceased can share memories on the account’s timeline
Similarly to Facebook, Instagram accounts can also be permanently deleted or memorialized upon request. To remove the account, the user must provide proof that they are an immediate family member of the deceased. Proof may include the deceased’s birth or death certificate or proof of authority that the individual is the lawful representative of the deceased person or their estate. In order to memorialize an account, proof of death such as a link to an obituary or news article is required. A memorialized Instagram account will not appear differently from an account that has not been memorialized.
Instagram’s memorialized accounts have the following key features:
- No one can log into the account
- Posts shared on the account stay on Instagram and will remain visible to the audience they were initially shared with
- Changes will not be able to be made to any of the account’s existing posts or information
Unlike Facebook, a legacy contact cannot be appointed for a memorialized Instagram account.
A colleague, classmate or loved one can request the removal of the deceased’s profile by filling out this form. The form requires several pieces of information such as the applicant’s relationship to the deceased, the link to the deceased’s obituary and the company the deceased most recently worked at.
A verified immediate family member or someone who is authorized to act on behalf of the estate can request the removal of the deceased’s account. A request requires information about the deceased, a copy of ID from the individual making the request and a copy of the deceased’s death certificate.
Thanks for reading!
Ian M. Hull and Celine Dookie
Today on Hull on Estates, Noah Weisberg and Nick Esterbauer discuss the role of social media in the context of Estate Litigation.
Should you have any questions, please email us at firstname.lastname@example.org or leave a comment on our blog.
A recent decision dealing with the estate of a French rock star highlights the potential relevance of social media evidence in estates matters.
Johnny Halliday, known as the “French Elvis”, died in 2017, leaving a Last Will and Testament that left his entire estate to his fourth wife, disinheriting his adult children from a previous marriage. The New York Times reports that French law does not permit a testator to disinherit his or her children in such a manner, and the adult children made a claim against the estate on that basis. The issue became whether the deceased singer had lived primarily in the United States or in France.
Halliday was active on Instagram, using the service to promote his albums and tours, as well as to share details of his personal life with fans. The adult children were, accordingly, able to track where their father had been located in the years leading up to his death, establishing that he had lived in France for 151 days in 2015 and 168 in 2016, before spending 7 months immediately preceding his death in France. Their position based on the social media evidence was preferred over that of Halliday’s widow and their claims against the estate were permitted.
Decisions like this raise the issue of whether parties to estate litigation can be required to produce the contents of their social media profiles as relevant evidence to the issues in dispute. Arguably, within the context of estates, social media evidence may be particularly relevant to dependant’s support applications, where the nature of an alleged dependant’s relationship with the deceased, along with the lifestyle enjoyed prior to death, may be well-documented.
The law regarding the discoverability of social media posts in estate and family law in Canada is still developing. While the prevalence of social media like Instagram, Twitter, and Facebook is undeniable, services like these have not become popular only in the last fifteen years or so and it seems that users continue to share increasingly intimate parts of their lives online.
Thank you for reading.
Take a minute to think about how much of “you” exists online. Financial records, photographs, music, social media content, automatic bill payment instructions – the list goes on. And with Bitcoin and other digital assets that have a market value, you could have a lot more than funny posts and pictures in electronic form.
For your estate, we’re so used to thinking of physical assets when it comes to planning, it’s easy to overlook your digital assets when preparing or reviewing estate plans.
There is no right of survivorship for digital assets, so your surviving loved ones are often faced with challenges when trying to access or delete online accounts. Legislation hasn’t kept up, and very few jurisdictions have rules about the release of information required to access accounts to family members or friends, absent a court order. As a result, different providers have different policies about what they allow for access to, or removal of, digital information stored.
If you have digital assets or an online presence, here are three estate planning tips that can help ensure a smoother estate settlement process:
- Appoint an estate trustee who is technologically savvy, can handle the responsibility of being an executor, and is a person you trust to handle your affairs. Make sure this person knows what you would like done with your digital assets (such as through a letter attached to your will), and ensure you give your estate trustee express authority in your will to deal with your electronic assets.
- Make use of existing tools that let you make choices now for online accounts after your death. Examples include Facebook Legacy Contact https://www.facebook.com/help/1568013990080948 and Google’s Interactive Account Manager https://publicpolicy.googleblog.com/2013/04/plan-your-digital-afterlife-with.html.
- Provide a detailed list of any virtual accounts, and related usernames and passwords, to your family and estate trustee. Better yet, consider using a password manager service that stores all usernames and passwords to all virtual accounts in a safe and secure format which can be accessed by one master password (there are many of these services available). In this way, your list can be updated easily and an executor only needs to be provided with one password to access all of the necessary information.
Review your plans
The issue of digital assets and estate planning is not just for Millennials. For both young and old, technology has changed the way we live. Think through what you have online, and revisit your current estate documents to ensure you’ve covered your bases in relation to your digital assets and presence.
Thank you for reading!
While placing an advertisement in the classifieds section of a newspaper is a common enough occurrence in the administration of an estate, it is rare that a family attempts to get two birds with one stone, and advertises to prospective buyers for the deceased’s possessions in the obituary itself. The Toronto Star recently reported on a light hearted and humorous obituary which was recently featured in their newspaper which had gone viral on social media. In an entertaining nod to a life well lived, a family wrote an obituary for their late 94 year old mother which in part contained the following:
“She left behind a hell of a lot of stuff to her daughter and sons who have no idea what to do with it. So if you’re looking for 2 extremely large TV’s from the 90s, a large ceramic stork (we think) umbrella/cane stand, a toaster over (slightly used) or even a 2001 Oldsmobile with a spoiler (she loved putting the pedal to the metal), with only 71,000 kilometers and 1,000 tools that we aren’t sure what they’re used for. You should wait the appropriate amount of time and get in touch. Tomorrow would be fine. This is not an ad for a pawn shop, but an obituary for a great Woman, Mother, Grandmother and Great-Grandmother born on May 12, 1921 in Toronto…”
No stone was (literally) left unturned by the obituary, where the family goes on to provide the following description of their late mother:
“Her extensive vocabulary was more than highly proficient at knowing more curse words than most people learned in a lifetime. She liked four letter words as much as she loved her rock garden and trust us she LOVED to weed that garden with us as her helpers, when child labour was legal or so we were told. These words of encouragement, wisdom, and sometimes comfort, kept us in line, taught us the ‘school of hard knocks’ and gave us something to pass down to our children.”
While some may call the obituary unorthodox, it is clear that she was well loved and will be missed by her family. At the end of the day that is all any of us can really ask for, as, in the words of her family, “(s)he leaves behind a very dysfunctional family that she was very proud of.”
Have a great weekend.
This week on Hull on Estates, David Smith and Nick Esterbauer discuss digital legacies and recent developments in social media that may assist not only in sharing digital information and assets with surviving family members or friends, but also in continuing an online presence after death.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.
In today’s society, not only are individuals amassing vast digital assets, but they are also increasingly present on social media. More than ever, when planning your estate it is important to consider what happens to digital assets and your social presence when you pass away. The importance of these questions have been addressed prior on Hull & Hull LLP’s Toronto Estate Law Blog, here, here, and here.
As succession law in Ontario does not provide a complete solution, individual corporations are beginning to take matters into their own hands. Yahoo Japan is one such example.
Yahoo has created Yahoo Ending, in order to address end of life preparations known to the Japanese as ‘Shukatsu’.
According to an article in the Washington Post, this service allows the deactivation of a user’s account after their death, in addition to offering the deletion of documents, photos, and videos stored on the site, as well as automatically cancelling charges linked to Yahoo’s digital wallet. Furthermore, a virtual memorial space can be created along with an e-mail prepared by the deceased to be sent upon their death to preregistered recipients.
Interestingly, Yahoo Ending can also assist in estimating the cost of a funeral, locating a cemetery, and even the preparation of a Will.
Users of Yahoo Ending are charged a monthly fee.
Individuals must consider the size of their digital footprint and the many accounts they may currently have open. It is important to meet with professionals and estate planners to ensure your digital assets and social media accounts are properly considered, and planned for, in your Estate.
The online social media giant Facebook has taken steps to respond to the concerns about one’s personal account management upon death. Up until recently, the accounts of members that passed away were either “memorialized” or entrance into the accounts were locked.
On Thursday, February 12, 2015, Facebook introduced a feature entitled “legacy contact” that allows a user to designate another person to manage parts of their account after they die. The member is also given the opportunity to simply have their account deleted altogether after death.
The following features can be utilized by legacy contacts:
- responding to incoming friend requests
- updating the profile and header image
- downloading an archive of a deceased member’s photos
Legacy contacts, however, are not able to view private messages.
The new setting is presently only available to residents in the United States but eventually will be introduced in other countries. Currently, our Security Settings on Facebook in Canada allow members to designate 3-5 friends as “trusted contacts” that can assist if members have trouble accessing our accounts.
The new ‘legacy contact’ setting could become a helpful tool for people planning for the future. However, it is only one aspect of digital estate planning. Facebook is only one social media site, and many people are members of at least 2 or 3. Some tips on how to address modern digital accounts and assets can be found here, here and here.
Thank you for reading,
Given the prevalence of scepticism amongst lawyers (see my earlierblog), it is entirely in keeping with character for lawyers to be slow to openly embrace social media.
Judging from a recent study, it would seem that this might be doubly so for Canadian lawyers. In this article about Digital Life, the world’s largest study into consumers’ digital behaviours and attitudes ever conducted, the following observations were made about Canadians’ online activities:
- Canada lags in digital engagement.
- Canadians aren’t much for blogging.
- Canadians are average picture-sharers.
- Canadians do less social networking, more email.
- Canadians spend less time on social networking sites on their mobile devices.
- Canadians will be slower to transition social networking on mobile phones.
- With an average of 150 friends in our social networks, Canadians are not as "friendly" as consumers in some other countries.
If the President of the United States can win an election based in part on social media strategy, then even the most sceptical of lawyers cannot deny there just might be something to it. Barack Obama has so many friends on facebook and contacts on LinkedIn that even I am a 3rd level connection.
We have also seen this week much texting and tweeting from the courtroom during the sentencing hearing of Russell Williams. Justice Robert Scott agreed to allow the media to use electronic devices for the purpose of taking notes but said any use of laptops, handheld communications or recording devices must be done an a way that was not obtrusive to the court process.
Social media is a pretty big wave. It is changing our behaviour and it is here to stay. Whether you are a Canadian, a lawyer, or both, you might as well just hang on and enjoy the ride!
Sharon Davis – Click here for more information on Sharon Davis.