Recent decades have witnessed the demise of the traditional and
tangible, and the extensive evolution of the “digital
age”.
In this “digital age”, we handle our data differently;
with more and more people managing their financial, professional
and personal lives online. Devices such as tablets, laptops and
smartphones make it easier than ever for people to stay connected
to the digital world.
According to a recent survey conducted by Goldsmiths College on
behalf of web-hosting and cloud computing company Rackspace, at
least one in ten people in the United Kingdom has left or intends
to leave their internet passwords to their loved ones in their
Wills. The study, entitled “Generation Cloud”, found that
53% of those surveyed have password protected “treasured
possessions” stored online; such as e-mails, music, videos,
e-books, games and photographs; often worth thousands of pounds and
making physical collections a thing of the past. Accordingly, and
unsurprisingly, many testators now wish to make provision in their
Wills for how their online accounts will be managed and how their
digital possessions will be distributed when they are no longer
around.
Many people are making the decision to leave their passwords to
cloud services and websites, such as Hotmail, Facebook, Twitter,
iCloud and iTunes to ensure that their personal data can be
archived, deleted and monitored after they pass on. Others are
making the decision to leave their passwords in their Wills to
enable their families to access their digital possessions. In any
event, it is clear that people should be – and that
increasingly, they are – thinking about making arrangements
for their digital life after death.
An increasing number of businesses have recognised a demand for
services that help to manage digital estates after a testator has
passed on. New websites exist which allow a testator to make
provision for named persons to gain lawful access to their online
accounts after they have passed away. Ultimately, this is achieved
by completing an online form, which upon submission, refers the
testator to a lawyer, who can then ensure that the testator’s
wishes are carried out with legal and binding effect.
Other websites claim to store a testator’s passwords and last
wishes so that the same can be passed on and effected after their
death. Some services even allow a testator to communicate their
passwords from beyond the grave, by sending pre-written e-mails
which may be scheduled to be sent up to 50 years in advance. It is
worth noting that services such as these can be expensive and
ultimately of no legal effect. The law dictates who is entitled to
a testator’s assets. The only way to truly ensure that your
assets are dealt with and distributed according to your wishes is
through a carefully considered and legally effective Will.
Interestingly, purchases made with iTunes and Amazon accounts are
non-transferrable upon the death of the purchaser and will fall
outside of a Will. If a testator buys an album or an e-book from a
digital store, he or she is ultimately only purchasing a licence to
play that album or read that e-book. Amazon’s Kindle Store
Terms of Use expressly prohibit a user from passing on their
downloaded e-books:
“Unless specifically indicated otherwise, you may not sell,
rent, lease, distribute, broadcast, sub-licence or otherwise assign
any rights to the Kindle content or any portion of it to a third
party.”
Accordingly, such licences are granted exclusively to the purchaser
and are not transferable upon death through a Will or
otherwise.
While it is becoming more and more commonplace for testators to
leave their passwords and usernames behind in their Wills, the
decision to do so is not without its risks. Testators must consider
security issues – when Wills are admitted to Probate, they
become matters of public record. This may expose online accounts to
the possibilities of abuse and fraud. One way of circumventing this
risk is not to leave passwords and usernames in Wills, but instead
in a discrete note which may be referred to in the Will and stored
separately alongside it.
Another matter for people to consider in this “digital
age” is whether they should prepare an Enduring Power
Attorney. An Enduring Power of Attorney is a legal document by
which a person (the “Donor”) hands over to someone else
(the “Attorney”) the power to deal with and decide what
is done with the Donor’s financial affairs and property in the
event of the Donor’s mental incapacity.
An Attorney is under a legal obligation to act in the best
interests of the Donor and to consider his needs and wishes insofar
as is possible. An Attorney’s role is invaluable in the event
that a Donor becomes mentally incapable of looking after his own
online affairs. Without an Enduring Power of Attorney, even if
someone knows the Donor’s passwords, they will be unable to
legally access the Donor’s online accounts, such as bank
accounts, e-mail accounts and social networking sites in the event
of the Donor’s mental incapacity. Inevitably, this will make
managing such a person’s affairs much more difficult.
In summary, anyone wishing to ensure that their assets pass to
those persons they wish to benefit upon their death should make a
Will, and to guard against the difficulties of future mental
incapacity consider an Enduring Power of Attorney.
The traditional legal Will making process must now keep pace with
modern life. Full consideration must now be given to making
‘digital legacies’ and the protection of online assets
and personal data.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.