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Digitizing the Business of Wills: The Digital Assets Gap in Canadian Law

Apple blocks widow from honouring husband’s dying wish (CBC News): https://www.cbc.ca/news/business/widow-apple-denied-last-words-1.5761926

A recent CBC News story has demonstrated the obstacles that people can face when they try to deal with digital assets after the owner of those assets has died. The story, linked above, covers the experience of a Toronto woman (“Noble”) who has so far been unable to access an Apple account that she shared with her later husband, but that is in his name, and to which she has forgotten the password. Records of her husband’s experience with a fatal disease, which he wanted her to use to write a book for their family, are stored in the account.

According to the CBC, Noble was first told by Apple that she needed to “prove she has the legal right to her husband’s estate.” She sent certain documents that would normally be sufficient to access most assets of an estate, including her husband’s death certificate and will, but then was told that she would need a court order. She believed at first that she would not be able to afford to obtain a court order, and only proceeded after a lawyer agreed to complete the application pro bono.

Apple declined to comment for the CBC story, so the specific reasons that Noble was denied access are not entirely clear. An expert interviewed for the story appeared to suggest that a company’s handling of this type of situation is to some extent subject to its whims. He noted that digital assets are often “being governed by a privately held corporation,” commented that large American tech companies have a tendency to “brush off” Canadian users, and suggested that Canadians lack “leverage” in dealing with these companies as long as Canadian jurisdictions lack laws directly governing access to digital assets.

Apple did, however, make a specific legal justification for its refusal to provide access to Noble. It cited the Electronic Communications Privacy Act, an American federal statute that has been in place since 1986. The statute broadly prohibits the disclosure of a person’s electronic communications to any other person or entity outside of certain specified exceptions.

It is plausibly within the power of Canada’s provincial legislatures to address this problem. Apple’s terms of service ordinarily declare that the laws of California govern its interactions with its customers, but allow citizens of certain European countries, including the entire European Union, to rely on the laws of their local jurisdictions instead.

Importantly, if the Canadian provinces were to implement laws directly governing access to a testator’s digital assets, then it is entirely possible that Apple and other companies would create similar provisions to allow those laws to apply to Canadians who use their services.

In 2016, the Uniform Law Conference of Canada released its Uniform Access to Digital Assets by Fiduciaries Act, which is available at: https://www.ulcc.ca/images/stories/2016_pdf_en/2016ulcc0006.pdf. This act would allow a fiduciary of a digital account holder, meaning a trustee, attorney, guardian, or personal representative, to access that account holder’s accounts, subject to terms in the document that empowers the fiduciary. A fiduciary would be allowed to take actions regarding the digital assets, would be subject to the same duties in regard to digital assets as in regard to physical assets, and would be allowed to apply to the court for advice and direction. This act appears to be a useful example of a statute that could improve Canadian fiduciaries’ access to records held by large private companies, but notably, it has so far only been implemented in Saskatchewan, which passed it earlier this year.[1]

In the meantime, as documented in the CBC story, Canadian fiduciaries can face lengthy and expensive legal battles, involving both Canadian and American court proceedings, or be forced to give up and abandon digital assets that they should rightfully possess.

This series has often noted that ongoing technological developments, and changes in the extent to which people rely on technology, create demand for the law to “catch up” on the issue of electronic wills. The issue of fiduciary access to digital assets is another area in which the law tends to lag behind the current technological reality, and where the problems created by outdated laws can be difficult to resolve with the legal tools available. The world is far more digitally connected than it was even a decade ago, and electronic wills represent just one portion of a much broader need for legislative updates.

[1] The Fiduciaries Access to Digital Information Act, SS 2020, c 6

This paper is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This paper is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

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