If a will is drafted on a mobile phone, is it valid?

digital afterlife or legacy on phone

Credit: Michal Zacharzewski, SXC

According to this recent blog post by IdeaLaw, the answer is “yes, it can be!” There has been a case in Queensland already in which the court ruled that a will drafted on an iPhone was valid.

Three elements need to be satisfied for a court to find an informal will valid.

1) That it is a document
2) That the document states the deceased’s intentions for their estate after their death
3) That the deceased intended the document to be a will

Which leads to an important question.

Are there or could there be wills drafted on social networking sites or within an email inbox that could be declared valid in the future?

IdeaLaw proposes that this could be so if these above elements can be demonstrated. Read their blog post for a legal perspective on the Queensland example and potential consequences in layman’s terms.

Three important reasons to plan and organize your digital afterlife

Emily Baxter from www.awayforabit.com offers her views on why it’s important to plan a digital estate as part of a featured post on PassingBye. Read the full feature on PassingBye…

We spend a lot of time online. If recent reports are to be believed, Australians spend close to one day a week online while the Brits are estimated to spend one day every fortnight on the same activity. In the US, it is thought that the average user spends closer to two days per week either on mobile or digital media.

Which ever way you look at it, that’s a lot of time spent online which is spent communicating with others on social, commenting online, banking, shopping…. Then there’s the plethora of accounts and communities that a user signs up for. For instance, people on average have at least two email accounts and depending on the research you read, about twenty five apps that they have downloaded onto their phones. That is a significant number of companies and communities that individuals are engaging with.

Given the general trends of more time spent in the digital universe, it’s worth thinking about the footprint you will leave behind when the time comes. Here are three important reasons to consider planning and organising your digital afterlife.

Ownership of digital assets are not automatically transferable to next of kin

Who actually owns digital assets is a key yet unclear issue in today’s estate and legacy planning as a recent news story with Apple highlighted. There was a hoax story a while ago in which Bruce Willis was suing Apple because he wouldn’t be able to pass his extensive iTunes collection on to his children when he died. The story was bogus but as Paul Gordon, Associate for Finlaysons, a national law firm in Australia points out, the issue is real.

“Often when you ‘buy’ music online what you are actually acquiring is a licence to listen to it, rather than buying the song itself,” Gordon points out. “That licence may come with restrictions and may not be passed onto your next of kin when you die (i.e. a ‘personal’ contract). These issues aren’t going to go away and I’m sure will come before the courts in the coming years.”

Digital providers will not just hand over access to personal data or information of the deceased unless there’s a legal requirement to do so as their position is to defend the privacy of the account holder, in death as in life.

Damin Murdock, Principal Lawyer of the MurdockCheng Legal Practice based in Sydney suggests that when writing up a will, individuals remove any ambiguity about how they want their digital information dealt with upon their death.

It’s also recommended that you identify a system for storing sensitive information confidentially that can be passed on to next of kin. There are many options for doing this, involving legal representation, an online service or both.

Digital memories don’t last forever

It’s important to plan to capture memories and conversations as part of digital legacy and estate planning. Our new digital identities mostly exist in the hands of third parties and for many these days, memories reside in email and social media. Our mementos of events are digital photographs, or a casual comment posted online. These seem fleeting in the moment but can quickly gain significance as life changes occur. While we assume their digital nature makes them always accessible, they may not end up being everlasting.

Recently I wrote about how I’ve changed email accounts from Caramail to Hotmail to Yahoo to Gmail for social use – in the last fifteen years. Unfortunately, when trying to look back at past conversations, some of these accounts are now lost or no longer accessible which means that a large swath of my history is lost, not only to myself but to anyone who I might have passed a curated version to.

Today Facebook and Gmail might seem immortal, but there’s every reason to question whether they’ll still be around in a decade. Or whether they’ll make it easy to uncover these past memories. Their purpose may be entirely different.

The speed in which technology platforms change means that it’s important to have a way of archiving conversations as they happen. While I’m not suggesting that every single personal email conversation must be stored, this recent experience has highlighted the value of a system to continually capture personal messages and notes.

Digital gives you the opportunity to shape your legacy

The explosion of digital services means that there’s a wealth of opportunity for every person to shape their legacy and the way that they would like to be remembered. For instance, services offering the ability to leave personal messages for next of kin to communicate last wishes or words of comfort, can provide tremendous support. It’s a reminder that they were loved.

At the same time, people often have an insatiable desire to find out more about loved ones who have died, even if they believe they know them well in the first place. It’s common to hear stories of mourners piecing together strands of a life story in the same way they would a jigsaw puzzle by looking through old photos or having conversations with friends or family of the person who has died.

A digital afterlife plan which includes memories and mementos, photos or correspondence can help next of kin, family and close friends to remember the good times and provide support in what will likely be a tough, emotional time.

***

This feature was originally posted on PassingBye.

Messages from Beyond

Digital afterlife messages from beyond

Ben Earwicker, Garrison Photography

I love reading through and reminding myself of the messages received from DBS after he died. When I say that, I don’t mean ‘other realm’ kind of messages delivered by a psychic or similar. Instead, I’m referring to handwritten notes or cards written by him and addressed to me which I received after his death.

They provided tremendous comfort and still do. Which has made me think about how I should leave messages to friends and family for when my time comes. It’s not an easy thing to think about but if you’re making a digital will that addresses practical items such as password transfer to next of kin or instructions on what to do with your digital information, including a personal message with this information may be a logical next step.

 

Messages from DBS

In previous posts, I’ve mentioned that my brother preferred committing thoughts down by pen and paper as opposed to using email or social. We weren’t reliable communicators but despite this, I received multiple messages from him over a period of several weeks after he died.

The first message I received from DBS was two days after his death. Sitting in my mailbox, was a postcard that had been sent several weeks previously but took its time to arrive because he’d sent it from a very remote overseas location. Later there was the card he’d scrawled to me in Afghanistan but that he hadn’t had a chance to send which came back with his personal effects.

Months later when sorting through his papers at home, I came across his ‘unofficial’ will, a piece of dated A4 paper in his beautiful, black ink writing stating his intention for his estate. While mostly formal in nature, he’d included a personal message to me. I was touched and moved for days afterwards.

Finally, his diary revealed what I hadn’t been able to discover from Google because of their stance they took (at that time) of not sharing an account holder’s data with next of kin without going through legal proceedings. When DBS died, one of the first things I wanted to know at the time and eventually obsessed about, was whether or not he had read my emails that I’d sent to him while he was stationed in Afghanistan. Somehow, not knowing if he had received them meant that they started to represent something more significant for me; whether or not he knew that he was in my thoughts and that I loved him.

When I eventually brought myself to read his diary months later, I saw an entry dated 21 October that opened with…. ”Today, I received another lovely email from Emily….”

Words cannot describe how I felt at that time. It seemed as though I had received a personal answer from him to the question that had hounded me for a significant period of time.

Learn how to transition your email and personal data to next of kin using Google Inactive Manager.

Things to consider when working with digital services offering to send messages to loved ones

DBS hadn’t planned the way in which I received messages from him after he died with the exception of his handwritten will. I feel fortunate though that I received them and the emotional benefits are unquantifiable. On each occasion, his notes gave me a real sense of happiness and I almost felt as if he was visiting me in some way. I still glow when I think about them and value these mementos.

For anyone considering estate planning, I’d recommend including this kind of personal touch for friends and family for conveying love and providing comfort.

Given my own experience, I’m a fan of planning with handwritten notes however, there are now a wealth of digital services that you can work with to leave messages for loved ones with. A note of caution though. If you plan to go digital, check with the company to check their stability and financial status. A few companies I’ve researched from 2007 have been acquired or simply shut up shop, such can be the fleeting, temporary nature of digital. Also beware of the organisations that don’t have a long term vision or plan for their business. You want to be confident when signing up to a service that it will comfortably outlive you and honour your wishes in the future.

In all dealings with companies assisting you with digital afterlife services, I’d suggest researching with the following questions in mind:

  • How long is their commitment to providing digital services? Are they thinking day-to-day terms or over fifty years, hundred years?
  • What is their financial status?
  • What will happen to customers’ planning services in the event that they fold/are acquired?
  • Where how/will they share your final message? If it’s via a third party social networking platform, what happens to your message if the platform no longer exists?

It’s a new digital realm so it’s wise to do your background research. And spend some time understanding terms and conditions, particularly around what kind of jurisdictional rules may apply to you from a legal perspective and on what basis the company will share private data.

If you’re not confident about a digital service, do your own video recording and give it to your solicitor or a close family member or friend to look after while attending to your estate planning. It doesn’t have to be complicated. Based on my own experience, a simple handwritten note placed somewhere safely or with someone can make all the difference to those left behind.

NEXT ON THIS: DIGITAL AFTERLIFE MESSAGE SERVICES

Digital services for managing passwords and other important information

A legal representative such as a solicitor or lawyer can act as a third party confidant in helping you plan a digital afterlife and privately keep your passwords on file for next of kin. There are also many, many different digital legacy and afterlife services that are emerging and you can compare their approach. Here are some digital services that store and help you organise your confidential information including passwords and offer the option to transfer relevant information to beneficiaries when the time comes.

These are ones that I’ve been made aware of recently but not necessarily trialled. I’d recommend that you do research services thoroughly before committing to make sure that you find one that suits your requirements.  Many digital offerings provide the option of a free trial as well.

Are there others you’d suggest? If so, please drop details in the comments section below.

 

Cirrus Legacy

This service (UK based) allows clients to manage their online accounts on a day to day basis as well as upload and store critical documents appertaining to their life. Account information and documents or files can be assigned to an executor or a guardian after death to carry out their last wishes. Cirrus does not give ownership to any financial, sentimental, intellectual or social data but offers are a series of signposts if you will to the accounts for executors and family to deal with on a one to one basis.

According to Paul Golding who owes Cirrus Legacy, if the firm was acquired the data would move to the new owners, who would have to adhere to our clients wishes in regards to sharing and the usage of their personal information as specified by the client at sign-up. If the firm were to close down, a process is in place granting time for the individual client to retrieve their stored information. The company also runs an affiliate program across a UK solicitor network.

Passing Bye

Passing Bye focuses on providing a file vault for documents and a secure central password management system but also offers a journal type facility where you can store favourite personal items such as stories, memories, recipes, photos or videos. Another feature highlighted is the option to store last final messages which are sent to intended recipients when you’re gone. Sharing options and rights are built into the service and subscribers pay on an annual basis with a free 30 day trial available.

Planned Departure

Another service (UK based) that acts like an electronic vault, holding your important documents, account details and passwords. It was designed and built specifically for digital afterlife planning and requires you to give contact details for next of kin or nominated representatives to speak to when the time comes. The company offers a 14 day trial and offers payment plans on a monthly, yearly or lifetime basis.

SafelyFiled

SafelyFiled offers a platform for users to organise, store, and retrieve important documents and account details. It then allows the account owner to share information with family members or professional advisor. Different types of information can be shared with different beneficiaries and prompts are sent when it’s time to update or renew important documents. SafelyFiled offers a free account for medical information and a 30 day money back guarantee on other services if not fulfilling your needs. It also offers very useful checklist resources.

Your Digital File

Your Digital File is a newly launched service based in Australia specialising in the digital storage,sharing and signing of confidential documents. It positions itself as a hyper secure service both for personal and corporate use..

It securely protects confidential files from others (even Your Digital File can’t see them) and provides a secure means to share and manage documents. Nominated documents (ie wills), are released to beneficiaries when the account holder dies once verified by Your Digital File. The company has a tiered level of account offerings based on how much storage a subscriber needs.

 

How to keep passwords confidential while bequeathing them to your next of kin: digital services

 

digital_afterlife_password_security

Copyright: Asif Akbar

A legal representative such as a solicitor or lawyer can act as a third party confidant in helping you plan a digital afterlife and privately keep your passwords on file for next of kin. There is also an increasing number of digital afterlife and secure online password services that will help you assign important information such as bank or legal documents to nominated beneficiaries as well as release usernames and passwords according to your instructions.

These can be more convenient for people who are active internet users changing passwords several times a year across multiple accounts. They allow users to automatically access and update their information whenever they want without the need to work through another person. This is useful if someone has to respond quickly to a bug or security threat.

There are other advantages too. Online services concerned with passwords and passing on digital legacies are varied in what they offer but generally speaking, they aim to centrally manage multiple sources of data in one place. Many include a decent amount of storage for the account holder to organise photos, memories, notes and documents with friendly user interfaces for viewing and downloading. On the whole, they encourage users to think in a structured way about doing an inventory of their online life and the digital legacy that they’d like to share.

When doing your research, it’s worth fully understanding how the service will verify when it is time to share your confidential information. Because of their nature, digital afterlife services are often automated and take a variety of approaches to ascertain if someone has died and if their data should be passed on. Some such as Google Inactive Manager provide information to next of or nominated kin if the account holder hasn’t logged into the service for a period of time. Others, will send prompts, such as emails or texts to customers periodically, asking them to confirm that they are still alive. If there’s no reply, these companies will often do additional checks to establish if the account holder is deceased before finally distributing information to next of kin.

If you don’t check in with or respond to this kind of service within your agreed time period, you may end up sharing information before it’s time, something that will be distressing, awkward and have security implications for you. Ensure that you fully understand the terms and conditions as well as the style and format of communication this kind of service has – both with you and your next of kin.

Also, make sure that your digital service fits in with your lifestyle. If you are not likely to check in regularly with a service that relies on you to do so, either because you don’t spend a lot of time online or you’re unlikely to remember, this type of offering won’t be a convenient option. Similarly, a digital legacy plan that operates by sending a series of electronic prompts asking you to confirm that you are alive won’t work for you if this type of communication bugs you.

Given that the digital afterlife industry is still an immature one, I’d recommend that you find out what the financial status or longer term vision is of the organisation that you’re considering. There have been a few mergers of late. Entrustet was acquired by SecureSafe and more recently PasswordBox bought LegacyLocker. Shifts happen in any industry but it’s worth asking any potential company that’s going to be charged with your digital legacy, what its longer term goals are and how it is going to support them. What are its contingency plans for your data if it expires before you do?

Finally, it’s worth re-iterating that you should check terms and conditions to fully understand what you’re subscribing to, what your responsibilities are when using the service as well as the service provider’s accountability to you. According to Damin Murdock, Principal Lawyer for MurdockCheng Legal Practice, the main benefit of storing your digital estate with a lawyer as opposed to an online platform is that the client will have the comfort of knowing a law firm has a succession plan and is bound by strict rules, regulations and statutory duties. With an online platform, you are only bound by terms and conditions of use for the online platform. Be clear what kind of jurisdictional rules may apply to you and what its commitment is to you and your data.

What digital services exist to manage and transition passwords and other important documentation to next of kin?

Who owns a person’s digital and online data when they die?

Apple recently made national news following their misunderstanding of an estate related query from one of their customers in the UK.

A son inherited his mother’s iPad device and he appealed to the manufacturer to help him unlock it.  The company asked for a series of legal steps to be undertaken and documents to be provided with the request as their concern was to protect the account information, data and content of the original owner.

When the company realised that the son only wanted to use the device and for it to be returned to its factory settings, that is to say, wiped clean of its previous owner’s accounts, data and history, it duly complied and fulfilled the request.

This news story highlighted that online data and accounts do not automatically have the same status as we associate with traditional or fixed assets that form part of an estate. In this case, while the iPad as a device was seen as transferable from person to person, the data and software contained within it was not and may not have been, even if wishes regarding it had been explicitly outlined in a will.

Who actually owns digital assets is a key yet unclear issue in today’s estate and legacy planning. There was a hoax story a while ago in which Bruce Willis was suing Apple because he wouldn’t be able to pass his extensive iTunes collection on to his children when he died. The story was bogus but as Paul Gordon, Associate for Finlaysons, a national law firm in Australia points out, the issue is real.

“Often when you ‘buy’ music online what you are actually acquiring is a licence to listen to it, rather than buying the song itself,” Gordon points out. “That licence may come with restrictions and may not be passed onto your next of kin when you die (i.e. a ‘personal’ contract). These issues aren’t going to go away and I’m sure will come before the courts in the coming years.”

In a previous post, I’ve mentioned how people who have lost relatives or friends often have a drive to find out more about them, including their digital lives. While this latest case with Apple made headlines, it’s not an uncommon event. Digital providers will not just hand over access to personal data or information of the deceased unless there’s a legal requirement to do so as their position is to defend the privacy of the account holder, in death as in life.

Damin Murdock, Principal Lawyer of the MurdockCheng Legal Practice based in Sydney suggests that when writing up a will, individuals remove any ambiguity about how they want their digital information dealt with upon their death.

“I always recommend my clients to have a list of all bank accounts, passwords, PIN numbers and so forth with respect to financial institutions,” Murdock says.

“The same should apply for digital accounts. Next time you see a lawyer to update your Will, you should ask that lawyer to help you include your digital accounts, usernames and passwords. They can also work with you to provide for all intellectual property rights contained in each asset to be transferred to the respective beneficiary. Lastly, you can waive your rights to privacy so your Executor can gain access to your accounts and deal with them in accordance with your wishes (if this is what you really want).”

Gordon concurs and doesn’t anticipate changes in legislation to digital and online asset ownership anytime soon.

“In the US, several states have passed laws which deal with access to social media accounts, allowing the executor to take control after death. This is slowly creeping across the States but is yet to appear in Australia.”

He agrees that it is important to consider what will happen after you die and make sure it is well documented, ideally in a will, but also known amongst family members.

“Like a lot of these things, people often put them off as it means facing up to their own mortality. But it is important to do to save your loved ones from having to go through difficult and complex legal processes to get access to your online assets.”

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