Digital death is still a problem. A widow’s battle to access her husband’s Apple account

Privacy Legislation for electronic estate

Personal representatives should also be aware of their rights to personal information of the deceased under privacy legislation. Privacy legislation may be raised by providers of electronic services as a reason they are not able to provide a personal representative with access to the account of a deceased. In addition, a personal representative may have need to access or correct personal information on behalf of the deceased. The Personal Information Protection Act (British Columbia) (PIPA) governs the collection, use and disclosure of personal information by private organizations in British Columbia.

Other provinces are governed either by similar provincial legislation or by similar provisions in the federal Personal Information Protection and Electronic Documents Act (PIPEDA). PIPA requires that private organizations obtain the informed consent of individuals for the collection, use and disclosure of personal information. Under section 23 of PIPA, an individual may require an organization to provide him or her with the individual’s personal information under the organization’s control, information about how that personal information is and has been used, and the names of persons to whom the information has been disclosed. The requesting individual then has the right under section 24 to correct any information held by the organization that is incorrect. The Personal Information Protection Regulations made under PIPA specify who may act on behalf of deceased persons and other individuals.

Under section 3 of the Regulations, a personal representative of a deceased person may exercise the rights of the deceased individual under the Act, and give or refuse consent with respect to personal information of the deceased under the Act. If there is no personal representative appointed, then the “nearest relative” of the deceased has the same rights. The Regulations contain a prioritized list to define “nearest relative”.

Under section 2 of the Regulations, a committee, attorney acting under an enduring power of attorney, a litigation guardian, or a representative under the Representation Agreement Act are also given full power to exercise the privacy rights of the individual whom they represent. Because no priority is granted as between these roles, one adult patient may have two or more representatives authorized to exercise their privacy rights under PIPA.

Memorandum of Digital Assets

Clients should be encouraged to catalogue all of their digital assets and services, and provide access information in a centralized Memorandum or file for the executor. The Memorandum should also express wishes with respect to how the assets should be handled after they die, for example whether accounts should be deleted and closed, or contents passed on to others. Obviously it will be key to maintain tight security over such a list.

The Memorandum may be kept in a safety deposit box, or sealed and stored with the Will in the lawyer’s file. Alternatively, the client may store the information in a password‐protected electronic document and keep the password for the file separate from the file itself. A Memorandum of Digital Assets is sometimes referred to as a “digital will” or “social media will”. However, since such a document would likely change frequently and many assets would not have financial value, in most cases this document will not be constituted as a formal will. Any assets having significant value should be dealt with specifically under the will, or incorporated by reference in a binding memorandum executed as a testamentary document. A sample Memorandum of Digital Assets is set forth in Appendix I.