Most people these days have an e-mail account, and many also have one or more social media accounts, or make their living online through e-commerce websites, blogs or vlogs. In Ontario, the rights and abilities of estate trustees and attorneys for property remain unclear in respect of dealing with digital assets. The Substitute Decisions Act, 1992 and the Estates Administration Act, provide that estate trustees and attorneys for property or guardians of property are authorized to manage the “property” of an incapable person or an estate. Section 2 of the Succession Law Reform Act permits an individual to “by will devise, bequeath or dispose of all property… to which at that time of his or her death he or she is entitled either at law or at equity”. However, none of these statutes define or refer explicitly to digital assets.
“Digital assets” include online accounts such as e-mail, social media, streaming sites, gaming sites and file storage or sharing applications. They also include websites, such as e-commerce sites, blogs and potentially the revenue arising from such sites, as well as sites dealing with cryptocurrencies, non-fungible tokens and rewards programs. Finally, they include both assets stored on physical devices, such as laptops or smartphones, and those stored in the cloud or on third-party servers.
Estate trustees and attorneys may encounter a number of challenges when attempting to deal with the digital assets of a deceased or incapable person. For example, there have been numerous stories about estate trustees being unable to access a deceased person’s social media or e-mail accounts, or files stored through third-party applications. These denials of access have led to financial losses (for example, where e-mail accounts are used to receive billing information or ownership of web domains or similar assets is lost) or have made it impossible to discover financial assets of the deceased.
Part of the problem lies with the fact that estates legislation conflicts with other legislation, such as privacy laws, or involves issues with foreign jurisdictions. For example, digital assets custodians are wary of providing information that might contravene privacy laws without knowing the intent of the deceased in relation to the information stored on their sites. Further, there have been recent cases where, despite obtaining a Canadian court order providing access, certain digital assetscustodians have required court orders in the jurisdiction where the custodian has its head offices in order to permit an estate trustee to access a deceased’s digital assets, or have simply refused to comply.
If your Will and Powers of Attorney are more than 5 years old and you are thinking of making other changes to these documents, our estates department would be pleased to add digital assets clauses to your Will and your Continuing Power of Attorney for Property if they don’t already contain such clauses. This is particularly important where you earn your living online or hold copyrights or other online intellectual property. While we can’t guarantee that these clauses will be enough to permit your estate trustees and attorneys to deal with your digital assets until the law is updated to reflect the increasing prevalence of such assets, they ought to assist your estate trustees and attorneys in obtaining access to your accounts and other digital assets. In any event, we recommend that you carefully review the terms of any accounts, e-commerce websites, or social media websites that you use in order to determine whether your estate trustees or attorneys will have the authority under your current Will and Continuing Power of Attorney for Property to access, control and shut down your digital assets.
The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.