When I spoke about the confusing combination of digital assets and death at the Law Society of Upper Canada’s 2013 Six Minute Estate Lawyer, the main theme of my presentation was the consequences of failing to plan. Unless a person plans to give their executor the necessary directions and tools to deal with digital assets, it is often unclear if they can be dealt with at all.

But once you have accepted that digital estate planning is necessary, how do you actually do it so that it works?

A Kansas case reported by Slate.com illustrates how the novelty of digital estate planning means that even planning done with deliberate care is fraught with uncertainty.

Martin Manley, a 60-year old sports journalist for the Kansas City Star, commited suicide last Thursday. Instead of a suicide note written on paper, he instead left what Slate.com called a “21st-century suicide note”. He created a website explaining in detail his reasons for his choice to end his life.

Manley planned ahead to make very sure that the world would know his final thoughts and feelings. He bought a prepaid web hosting plan from Yahoo to keep his site up and running for five years.

However, as of the time of writing of this blog post, Manley’s website is unavailable. Why? Because Yahoo deemed that it violated its terms of service and shut it down.

On August 18, 2013, Slate.com reported that Manley’s sister was trying to reach Yahoo to ask them to put the site back up. In an interview with her, she said:

I am very saddened that Yahoo would dishonor my brother’s contract that he made with them. I learned from my brother posthumously that he had worked on this web site for over a year. Martin had been a very private person in many ways. It was incredibly important to him that all who cared for him be able to see who he really was. I speak for all of his friends and family, when I say that we want to be able to have access to this site.

A cursory read will tell the reader that Martin was not advocating suicide for others. There is nothing offensive about his site. While it is painful for me, I believe that he handled the topic very appropriately. Since Martin did have a pre-paid contract with yahoo for the next five years, I am pleading with Yahoo to either republish the site, or allow the family to have the files so that we can find another way to carry out Martin’s wishes.

This story is an example of the unusual nature of digital assets and the difficulty in making concrete estate plans dealing with them. Unlike many of their traditional counterparts, digital assets and accounts are often bound up in contractual terms of service, located in remote jurisdictions, in the custody of organizations that may not possess the capacity or expertise to deal with estate law issues, and might represent (as in the case of email accounts) very private or sensitive information.

Digital estate planning is a new field. Of the very few cases that we are aware of, most are disputes arising from a lack of planning. The Manley case seems to be at the vanguard of a new breed of disputes that are about the enforceability of a testator’s explicit digital estate plan. We look forward to getting more guidance from the courts and legislators in this area.