Today, practically every individual, regardless of their age, gender or ethnic background, is likely to leave behind a digital footprint.
That is because most of us are internet users and many spend an increasing amount of time in the virtual world, creating an online persona and leaving a trail of digital assets in their wake. The increasing significance of digital assets and the different legislation across the world that regulates digital assets, raise a host of legal issues that do not fit neatly within the traditional concepts of wills and estates.
Legislative provisions and judicial determinations
While the growth of digital assets has outpaced binding legislative provisions or judicial determinations in Australia, jurisdictions such as the United States of America, Canada and some parts of Europe have formal legislation dealing with who has the right to access a person’s digital assets on death or incapacity.
However, there has been major progress in the State of New South Wales (“NSW”). The NSW Law Reform Commission reviewed and reported on the laws in NSW that affect access to a person’s digital assets on death or incapacity. In a report issued in parliament in March 2020, it was recommended that NSW enact a statutory scheme that enables an authorised person, in limited circumstances, to have access to a deceased or incapacitated person’s digital assets.
This recommended scheme would be the first of its kind in Australia and could apply nationally enabling other states and territories within Australia to use the scheme as a model to enact their own legislation.
Social media profiles and Accounts
We are faced with a seemingly endless list of items that could constitute digital assets. An example includes, but is not limited to, social media profiles and accounts (i.e., Facebook, Instagram and LinkedIn) that will likely hold an emotional value to your family and friends.
In the absence of binding legislation and judicial determinations dealing with who has the right to access a person’s digital assets on death or incapacity, the right will likely be regulated by the terms of your service agreement entered into with the service provider.
Each individual service provider has its own service agreement with policies as to what happens to an account holder’s digital assets on his or her death or incapacity. In addition to there being no standard service agreement followed by service providers, they can and do review their policies and unilaterally alter them without prior consultation with the account holder.
Facebook allows you to either memorialise your account or have it permanently deleted and/or removed. If you choose to have it memorialised, you are required to choose a legacy contact.
A legacy contact is a trusted person who is authorised to manage a deceased person’s account. For example, the legacy contact can write a pinned post and update a deceased’s profile, but cannot log into the account, read messages or make changes to the deceased’s friend list.
It is recommended that you express your wishes for your account(s) to be memorialised or permanently deleted and/or removed when expressing your funeral wishes in your will. We also encourage you to create an inventory of your digital assets in the form of a memorandum of wishes outlining your account(s), your wishes regarding those account(s) and your username(s) and email address(es).
If you fail to appoint a legacy contact, Facebook’s terms of service agreement stipulates that the person appointed as your digital executor(s) in your will has the same powers as those of a legacy contact. For the avoidance of doubt, provisions should be included in your will outlining that the person appointed as your executor(s) is also appointed as your digital executor(s).
Yahoo and eBay –
Unlike Facebook, Yahoo’s terms of service agreement stipulate that they will not provide information or access to a deceased person’s account and will deactivate the account immediately upon proper notification of a user’s death.
Other service providers like eBay do not mention, or provide for, the death or incapacity of a user in their service agreement.
Digital assets can no longer be ignored and we recommend you speak with us to develop solutions to deal with your digital assets as part of your estate planning.
by KYLIE JOUBERT