Digital Wills & Access To Online Assets By Fiduciaries

Who owns our private data when we die? What are the boundaries between a deceased's right to privacy and the access a fiduciary typically has to a decedent's physical assets? If a fiduciary is granted access, what happens when tech companies located in the United States refuse to comply? The answers to these questions have far-reaching impacts on Canadians, the vast majority of whom have increasingly comprehensive—and in many cases, monetarily valuable—digital identities.
Digital Wills & Access To Online Assets By Fiduciaries

The Disappearance of Dovi Henry, On and Offline

In July 2014, shortly after his 23rd birthday, University of Toronto student Dovi Henry went missing. Two months later, a decomposed body washed up on the shores of the Ontario Place marina. It lay unidentified in a morgue for two years. In the meantime, Dovi's mother searched for her son, to no avail. In April 2016, Maureen Henry googled “unclaimed black male remains.” She found a list published by the Ontario Provincial Police Missing Persons and Unidentified Bodies Unit, which finally connected her to her son's remains. 

By friends' and family's accounts, Dovi was a gifted poet and amiable person. By his second year of university, in 2012, his community noticed a shift in his demeanour and observed more erratic and incoherent behaviour. Toronto police claimed in an investigation there was no evidence of foul play in Dovi's death, yet the coroner's office has advised that his cause of death remains “inconclusive” and Dovi's mother maintains that he was not suicidal. Dovi had also been receiving anonymous death threats before his death.

When the formal investigation into Dovi's death concluded, Maureen looked to his digital footprint to uncover more clues to the full story. She soon faced institutional roadblocks: police would not grant her a search warrant to obtain access to her son's phone and digital accounts. Lacking the funds to hire a lawyer, Maureen represented herself in court hearings to order Bell Mobility, Google Canada, and Facebook to disclose Dovi's relevant information to her. 

In October 2017, the Ontario Superior Court determined that Maureen was entitled full access to Dovi's phone records and account passwords, thereby recovering his devices' location information, IP addresses, search history, private communications, and other private data. The extent of the judge' order, allowing Maureen sweeping access into her son's virtual personal life, is unprecedented.

Maureen's search for answers raises many broader legal questions: Who owns our private data when we die? What are the boundaries between a deceased's right to privacy and the access a fiduciary normally has to a decedent's physical assets? If a fiduciary is granted access, what happens when tech companies located in the United States refuse to comply? The answers to these questions have far-reaching impacts on Canadians, the vast majority of whom have increasingly comprehensive—and in many cases, monetarily valuable—digital identities.

Digitizing the Law of Wills

Estate administration is gradually adapting to our digitized world. Digital wills are the latest and most complex example of this adaptation. These wills handle a testator's digital assets and accounts, including those of both financial and sentimental value. The former category includes items stored online with continued revenue streams, such as social media channels like YouTube and Instagram, especially if monetized, domain names, and affiliate revenue accounts. 

Digital accounts also include virtual currency accounts, such as PayPal and Bitcoin. These do not include traditional banks which, despite being virtually accessible, hold real physical assets and are placed in a personal representative's custody on the receipt of a probated will. Personal accounts may also contain virtual property with monetary and practical value in licences, such as iTunes, Kindle, and Photoshop. It's estimated that the average Canadian owns between $10, 000 and $50, 000 in digital assets—though many are unaware of the extent of their digital patrimonies.

Equally important are non-monetary digital assets. The two categories may bleed into one another: a digital account can be profitable and useful, and simultaneously hold sentimental value for its user's loved ones after her death. For Maureen Henry, access to her son's accounts would mean answers into his death. For Carol Anne Noble, access to her late husband Don Noble's Apple account would mean fulfilling his dying wishes. 

Don died of spinal cancer in 2016. Towards the end of his life, he documented hours' worth of journal entries using Apple devices, hoping to eventually compile them into a book for his family. He was unable to do so before he died, and his dying wish was for his wife to complete the project. Carol Anne had shared access to their Apple account, but it was under Don's name.

When she contacted Apple for access to the virtual property, the tech giant refused unless she was able to present a court order. Apple claimed that providing her with the account password would violate the United States Electronic Communications Privacy Act. It did the same with Victoria widow Peggy Bush, who requested her husband's Apple account password to restore their purchased online games to her iPad, despite Carole Anne and Peggy both being named executors of their husbands' estates.

Because the majority of Canadian provinces have not adopted digital inheritance legislation, California law applies to Canadians dealing with tech companies domiciled there, like Apple. Citizens of the European Union and United Kingdom do not have this problem; Apple's terms and conditions of service grant them jurisdiction in their places of residence. With terms of service agreements varying so widely between companies in their levels of stringency and applicability, Canadians need comprehensive domestic legislative protection over paths to managing their deceased loved ones' digital assets.

Fiduciary Access to Digital Assets Legislation

The United States has already pioneered solutions to this problem. In 2014, the Uniform Law Commission completed the Uniform Fiduciary Access to Digital Access Act (UFADAA) to provide executors access to a decedent's digital assets, including unknown passwords and login information, allowing them to administer the entirety of a modern decedent's estate. After tech companies and privacy advocacy groups argued that the proposed Act would violate deceased persons' privacy, contravene existing privacy legislation, and unduly increase liability for third parties, the ULC proposed the Revised version (RUFADAA) in 2015, with more caveats. Forty-nine states have passed the Act or similar legislation, with legislation pending in Massachusetts in 2022. 

Canadian lawmakers are very far behind. The Uniform Law Conference of Canada adopted the Uniform Access Digital Assets by Fiduciaries Act (UADAFA) in August 2016. While not identical,, the Uniform Act is largely consistent with the RUFADAA provisions, thus more useful in persuading US-based custodians to comply with court orders. However, few Canadian provinces have yet to enact the Act. In June 2020, Saskatchewan adopted into force the Fiduciaries Access to Digital Information Act, and in January 2022, Prince Edward Island proclaimed the Access to Digital Assets Act. As of 2022, New Brunswick is currently considering, and likely to recommend adopting, the UADAFA.

No other provincial legislature is currently considering enacting the Uniform Act. However, some provinces have updated their wills and estates legislation. Alberta amended its Estate Administration Act in September 2022 to explicitly indicate estate trustees' duties to identify a testator's online accounts within her estate assets. The Alberta Law Reform Institute is also considering whether to recommend the Uniform Act be adopted. Without harmonized legislation, the rights of fiduciaries to digital assets remains contested. For example, Ontario estate trustees have the right to manage the property of incapable persons, though it is unclear whether digital assets constitute “property” within the meaning of the Estates Administration Act.

Problems to Consider

While legislative reform in this area is necessary, lawmakers must also consider many countervailing issues. Firstly, despite tech companies' deliberate obstruction to people like Maureen Henry and Carol Anne Noble's access to their loved ones' accounts, they raise an important point: testators' rights to privacy. If a testator does not will access to their digital assets and accounts to their designated executors, does this mean they intended to keep these private? What about if an individual dies intestate? Would their estate administrator be entitled to access after being granted Letters of Administration? 

Our virtual activity—private messages, search history, photo libraries—paint increasingly intimate portraits of our personal lives. Perhaps, even if it is painful, our loved ones should not get unmitigated access to our digital footprints in death, just as in life. Courts granting Maureen access to Dovi's accounts could open the floodgates to family members obtaining access to personal documents in many different scenarios. All legislation lawmakers enact must consider PIPEDA and all other relevant privacy legislation.

Even if future Canadian law grants fiduciaries access to digital assets, they may still struggle to force US-based corporations to comply with Canadian law. Obtaining court orders—especially from foreign jurisdictions—is expensive and the inherent power imbalance between tech giants and individual personal representatives means conglomerates like Apple and Facebook can fight for years in court. (Apple and Google eventually complied with the court order Maureen Henry obtained from a California judge, although Facebook is still fighting it). Ensuring that legislation is harmonized between foreign jurisdictions will lend greater credibility in the future vis-a-vis enforceability.

Practical Steps and Takeaways

Absent relevant legislation, testators and estate planners can take steps to protect and control their digital assets after death. Courts have not been consistent on the matter, although the prevailing wisdom is that digital assets are like any personal property; they can be bequeathed in a will. Testators should list their digital assets and accounts in their wills, including login information and access guides for their digital wills. 

In order to avoid potential issues with third-party compliance, testators should also include the login information to their social media accounts in their digital wills. Moreover, testators can also indicate how their estate executors should handle these accounts after their death. Many platforms now offer the option for users to appoint “legacy contacts” to look after their memorialised profiles once they have passed away.

However, legislative action is needed to ensure more comprehensive protection. Even with login information and probated wills in hand, executors and fiduciaries may still face roadblocks from noncompliant internet service providers and digital platforms. With statutory protection, such as the Uniform Act, individuals can more easily override service agreements between original account holders and these corporations, allowing them access to the true extent of a loved one's estate across the digital divide.

Seth Gordon
Seth Gordon is a Legal Researcher at Estateably. He is currently a J.D./B.C.L. candidate at McGill University Faculty of Law. He holds a B. Mus. from McGill University Schulich School of Music and previously studied at Minerva University.
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