Focus: Lawyers advised to brush up on digital assets

When lawyer Erin Cowling’s grandmother died last year, one of the first things the executor of the estate, Cowling’s father, did was go to her house.
As soon as he walked in the door of the house, he found a stack of mail that contained a hydro bill, an insurance bill, and a couple of bank statements.

Upstairs, he discovered a collection of love letters between his parents and boxes of family photos neatly prepared for each of his siblings.

“Very quickly, my father knew where everything was and knew everything he had to do to fulfil Nana’s wishes,” Cowling, an associate at Whaley Estate Litigation, told an audience at Osgoode Hall on Sept. 19.

They were there for a talk on digital assets put on by the Society of Trust and Estate Practitioners’ Canadian  chapter.

But, Cowling went on, if she were “to drop dead right now, it would be a very different story.”
All of her bills and bank account statements are paperless and delivered in an electronic format only to a multitude of e-mail addresses.

“You will find very few new books in my house,” said Cowling.

“My books are now found on my Kobo e-reader. You will find some photo albums, but the majority of my family photos and videos are stored on my password-protected computer and backed up in the cloud. You will not find a single love letter between myself and my husband.

“I’m not saying we’re not a romantic couple, but where those messages are is in our e-mails, our Facebook messages, our BlackBerry Messenger messages, our texts.”
According to Cowling, estates lawyers have been slow to acknowledge the shift in the way people organize their lives online.

“When I broach this topic of planning for your digital assets with drafting solicitors, sometimes I get the following response: ‘Well, it’s all very interesting, I find it fascinating, but it just doesn’t apply to my clients. So what if they have a few digital photos on their personal computer? It’s not really going to change anything.’

“Well, as we know, this is a changing world. We need to be putting just as much thought into our digital assets and accounts as we do into our physical and financial assets when planning our estate.”

Cowling said lawyers should encourage testators to think about who, if anyone, should get access to their digital accounts and to what extent.

“Do you want your children to have access to your personal e-mail account after you’ve died? Do you want them to see the e-mails you wrote about them complaining about their marks or their boyfriend or girlfriend? Who will have access to your online poker account?

Do you want your family to know that you have an online poker account?” she said, noting those types of questions “are just the tip of the iceberg.”

Some U.S. states have begun drafting legislation dealing with digital assets, but a uniform   approach has yet to develop. For example, Cowling pointed to states such as Idaho and Nebraska where estate administrators have the power to access, control, and terminate the digital accounts of the deceased.

Other states like Indiana and Connecticut have endorsed a more limited role for executors that allows them access in order to view and copy the contents of the accounts but not make changes such as closing them or deleting information.

In Canada, the absence of both legislation and case law means estate executors can be taking a step into the unknown. Cowling said testators can make their jobs easier by making their intentions known at the outset.

“The main thing you can do to protect your digital assets and accounts is to conduct digital audits before a will is drafted and periodically afterwards,” she said.”

“Once your digital audit is complete, you can leave a detailed list of accounts and passwords with clear instructions on your wishes for your digital life after death.”

Anita Fineberg, a privacy lawyer and former counsel at the Office of the Information and Privacy Commissioner of Ontario, told the audience that privacy issues can create even more headaches for executors.

She said it’s a common misconception that a person’s expectations of privacy die with them and that an executor can simply step into the shoes of the deceased.

According to Fineberg, executors shouldn’t assume they have protection from a claim for breach of privacy simply because they hold the user information for an account belonging to the testator.

She said communications and information contained in the digital accounts could affect parties such as the business partners, competitors, and employees of the deceased.

“Very often, what we find is that privacy issues are used as a cloak to advance another claim,” said Finberg.

“Without proactive management of this, one is potentially making assumptions that an individual’s controls and desires when alive dissipate upon death such that executors should have a right to this. I don’t know and I don’t think that that is a fair assumption.

I think if anything, the assumption should be in the other direction: that without a specific direction to the contrary, the individual wanted to maintain those controls and keep certain information limited.”

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