This blog was written by Ardena Bašić

As previously written (in other words, go read blog-de-digital wills Part #1!), online, electronic and digital wills are rising in prominence. Yet, given that there are no Canadian laws to address how these assets should be handled after death, it is vital to approach this issue carefully. As such, there are a variety of currently relevant laws, case laws and proposed legislation that can guide us through these new times.

Current Relevant Canadian Legislation

PIPEDA – also known as the Personal Information Protection and Electronic Documents Act – can help organizations decide whether they can rightfully access one’s personal information without their consent. More specifically, if an individual has been deceased for more than 20 years, their information can be released. If they have been deceased for less than 20, their information cannot be released for the purposes of estate administration. In those instances, retrieving the cute puppy albums from Facebook will have to wait.

American Case LawIn Ajemian v Yahoo! Inc, Ajemian passed with no will and left behind his Yahoo! Account. Although Yahoo! Stated that they could not disclose the account’s information to Ajemian’s family, privy to the SCA (Stored communications act), the court ruled that the act does not actually prohibit disclosure since the family is allowed to act on the deceased’s behalf. As such, the family was allowed to sift through Yahoo! Emails and other information preceding an exclamation point to their heart’s content.

In In Re Scandalios, a man without a will left family photos in his Apple iCloud account. Apple initially did not want to allow the executor access to the account, citing the Digital Assets section of New York’s Consolidated Laws, Estates, Powers and Trusts Law. However, the court said that – although disclosure of electric communications require proof of user consent – photos should not count as communications. Therefore, the man was able to access all the selfies and memes he so desired.

In Matter of White, the executor argued that he needed access to the deceased’s digital information in order to conduct business. Given that there was no mention of digital asset’s in the deceased’s will, the court allowed disclosure of only the information required for the business conduct – staying on the cautious side in revealing only the minimum amount of information.

Overall, a look at case law would exhibit the need to be watchful in revealing any kind of personal information or assets, alongside the difference in rules for the territories. Regardless, one should consider the best interests of both the deceased and their loved ones to analyze and disclose any information accordingly, whilst assuring to prioritize the intentions of the testator.

Proposed Canadian Legislation

The Uniform Access to Digital Access by Fiduciaries Act was adopted in 2016. This draws heavily from America’s similar act, and would essentially allow authorized fiduciaries access to digital assets as long as the terms of a legal contract (will, grant of probate, court order, etc) so allow. This would additionally make void any service agreement (those things that you scroll through and click the ‘I have read and agree to…’ although you did not read and are technically not entirely sure if you agree to them), unless the account holder makes clear their acceptance of the agreement in their estate documents.

Although this sounds pretty straightforward, service agreements are still complex legal documents that can make these cases far from simple. Furthermore, as shown in the In Re Scandalios case, what actually counts as a digital asset can generally be debated. In all, if you think you have considered all the potential complications and implications, you haven’t.

Best practices going forward

Given the highly ambiguous nature of this issue and its variables, one can keep a few common themes in mind when evaluating such cases.

The first is that, in any case, only disclose the minimum amount of information necessary. As shown in the Matter of White Case, erring on the side of caution by not over-revealing could save any information from getting into the wrong hands if an error in judgement is made in disclosing the information in general.  In other words, do not share all of one’s million Pinterest boards unless completely necessary (such as in the case of a desperate need for the best strudel recipe).

The second is to consider the beneficiaries of the estate documents. Does the estate allow disclosure? If so, in what amount? If not, would it be either sentimentally or financially advantageous to do so? One must also be prudent in avoiding any disclosure wherein the information would be abused as opposed to treasured – this requiring a significant amount of emotional intelligence during the highly emotional estate delegating process.

One should, of course, also keep the individual(s) whose assets you are considering at hand. If they did not include their digital assets in their will, does that mean they did not want them revealed? Or would they have wanted their beneficiaries to have access to them? Thoughtful analysis, speaking with beneficiaries (which, as aforementioned, requires significant emotional intelligence once the estate delegating process comes into effect) as well as practical judgement will be helpful in this case.

Lastly, consider the impact whatever decision you make will have on this situation as a precedent case. If another similar situation would occur, would you recommend the same or equivalent course of action? Of course, cases are highly variable and specific, but simple frameworks can be repetitive and warrant considering previous happenstances.

Overall, there are constant, potent changes happening in the estates world all the time. The virtual world now catering to (good) will-hunters is a highly intricate example of such. With time, more legislation and experience, we will hopefully be able to analyze these obstacles with a lesser amount of ambiguity.