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.

How can you keep your passwords confidential while providing to next of kin when the time comes?

Copyright: Patrick Hajzler

Copyright: Patrick Hajzler

You may be thinking about what happens to your digital estate after you die and you’ve read that it’s wise to provide a list of your online accounts and passwords to your nominated friend, family member or next of kin.

What options are available to you to transition this information securely and reliably? The chances are you won’t want to share sensitive log-in and account details to your next of kin while you are alive for many reasons including security. There are several third party organisations that will transition documents, digital password information or instructions to people you nominate to receive these when you die. In this article, we look at the benefits of using a solicitor or lawyer. Compare digital services and what to consider when assessing an online option.

Many organisations including Away For a Bit have suggested that usernames and passwords are provided to a solicitor or lawyer which can then be transferred to the right person or people as part of your estate.

For those wondering if this is a secure process, in Australia, lawyers are bound by both law and Professional Conduct Rules.

According to Paul Gordon, Associate at Finlaysons, “If a lawyer breaches these, they could be disqualified from practicing as a lawyer and could face additional penalties.”

These rules apply when solicitors are tasked with looking after information deemed confidential by the client. Gordon points out that “Professional Conduct Rules (which differ slightly between states and territories) require lawyers to keep information provided to them by their clients confidential, except in some very limited circumstances. If a list of usernames and passwords were to be provided to a solicitor, this would be treated no differently.”

There are advantages to using a solicitor versus using a digital service to pass on confidential password data. If your next of kin or family member is not online savvy then they may be overwhelmed by the processes involved with a digital transfer of this information to them. Or they may not even read the electronic communication that alerts them to its existence.

By using a solicitor, the recipient also has the benefit of being able to speak to and question someone personally about account information that has been included in a deceased person’s estate.

It’s best not to include a summary of your accounts and their access details directly in a will however. Once a Last Will and Testament is filed for probate within the appropriate state, it becomes a public document as does any codicil attached to a will.

For security and practical reasons, Gordon says that “he would recommend that this be given as a separate document to your lawyers for many reasons, including the fact that every time you changed your passwords, or added a new one, you would have to change the will!”

Things to consider

  • People considering using their lawyers to safeguard their digital identity should enquire about what security and confidentiality measures apply.
  • There may be a fee incurred when using a solicitor or lawyer to look after your documentation.
  • Be aware if the terms and conditions of the digital services you use allow you to disclose username/password information to your lawyer or next of kin when the time comes.

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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