Hull & Hull LLP
By Suzana Popovic-Montag
November 13th, 2024
Alberta Law Reform Institute recommends authorizing fiduciaries to access digital assets through new legislation
There is no disputing that most Canadians have an online presence. According to a recent Statistics Canada survey, 92% of Canadians used the internet in 2020 and 71% used social networking sites to communicate and share content.
Many Canadians are also storing their personal information and records on online platforms, such as Apple and Google, and social media platforms, like Facebook and Instagram. Typically, individuals who create online accounts must enter service agreements in order to store their information and records digitally, with the result that online entities are now playing the role of virtual custodians, holding digital records and personal information on behalf of their account holders.
The problem with this situation is that if an account holder passes away or loses capacity, their legal representatives may not be able to access their digital assets held by a virtual custodian.
In Ontario, there is no legislation that expressly authorizes fiduciaries, such as estate trustees and substitute decision-makers, to access digital assets. Focusing specifically on wills and estates, a virtual custodian may not recognize a certificate of appointment of estate trustee as authorizing access to a deceased account holder’s digital assets, notwithstanding that trustee’s legal authority. Virtual custodians often limit access to digital assets in accordance with the terms of the service agreement that the account holder entered into in order to use the online platform, making it potentially necessary for fiduciaries to resort to litigation to obtain access to a deceased or incapable account holder’s digital assets.
This problem is the focus of the latest report published by the Alberta Law Reform Institute earlier this year, entitled Access to Digital Assets. In it, the Institute recommends implementing legislation that would make it easier for fiduciaries to access account holder’s digital assets after death or incapacity by overriding restrictive service agreements.
