January 18, 2016

Peggy Bush, a 72-year-old Victoria B.C. resident, lost her husband David to cancer in August. Peggy, who David left his entire estate to, was able to transfer the title of their house and car to her name without issue by using a notarized death certificate and a copy of the will. The only asset Peggy wasn’t able to transfer was David’s Apple ID to allow her to play a card game app she had purchased on their iPad, CBC News reports.

The issue of digital assets in estates is not a new one, but it is a growing one. An article in the Globe and Mail last month highlighted a similar case in Britain where a son inherited an iPad, but not its password. Apple refused to give in to the family’s demands to provide access to the device, despite being provided a death certificate, a copy of the will, and a lawyer’s letter on the deceased’s son’s behalf.

In both cases, Apple acceded to family requests after there was media attention. If Apple had refused, it’s unclear what the family would have done. Bringing a court application would be disproportionate where the account in question is only worth a few dollars, or of purely sentimental value.

Digital accounts are opened only after a user agrees to lengthy terms of use contracts that restrict what a company can do with the user’s data. Similarly, various privacy laws and regulations govern the use of a person’s data by a company. Companies may have good reasons to be reluctant to comply with requests. For example, it may not be clear the deceased wanted his or her password to be provided to a loved one – an email password may reveal far more private information than a jewelry box or painting does.

One solution for testators may be to simply provide the passwords to beneficiaries, either while still living or as a provision in a will or a codicil to a will. But few people likely turn their minds to their digital assets when planning their estate; understandable, considering they may be more focused on their house, bank accounts, and personal effects. Another solution may be through provincial or federal legislation – but such a measure must be carefully considered for its privacy implications.

Some companies are taking a proactive solution and introducing options that allow for their users to direct what should happen to their account when they die. Google introduced its Inactive Account Manager, a setting which allows user to select what happens to their account after between a user-selected 3 to 18 months of inactivity. Users have the option of deleting their data, or having their data sent to a trusted contact (the settings are available here). Facebook introduced a similar setting last year, although it is currently only available in the United States.

As our lives are increasingly digitized, and the value of digital information continues to grow, one can imagine it will only be a matter of time before the issue reaches the courts.