Recent Apple case highlights the need to include digital assets in wills, says specialist solicitor

Posted on Tuesday June 11, 2019

Natalie Payne

Natalie Payne, a specialist solicitor in Wills and other private client services, says the case of Rachel Thompson should highlight the need for others to consider their digital legacy when planning their estate.

Rachel Thompson, a widow from West London, recently revealed how she had spent thousands of pounds in legal fees in order to obtain a court order that would force Apple to hand over thousands of images and videos from her late husband’s locked iPhone.

She was initially told she would need a grant of probate in order to access his files, but that this would only allow her to close his account and not access data held within it.

In order to do this, she would need a court order as her husband, Matt, had not specified his wishes in regards to access to his account after his death.

In light of this, Natalie is recommending that people give greater consideration to how their digital files and accounts are accessed by family after their death.

Under UK law, families of the deceased have no legal right to access information held in the person’s online accounts without prior permission.

“Social media, smartphones and cryptocurrency are a dominant part of everyday life but it is often something that is neglected during the preparation of a Will or our discussions surrounding our death or even care later in life under a Lasting Power of Attorney,” said Natalie, an Associate at London law firm Mackrell Turner Garrett.

“It is estimated that the value of our digital assets is approximately £25 billion, but this is likely to quickly increase as technology becomes an even greater part of our lives.”

Natalie said that in the tragic case of Rachel much of the cost and heartache could have been avoided had her husband realised that he could have spelt out his intentions within his Will and put the right provisions in place.

She said: “People are still relatively uninformed about this area and what they can and cannot stipulate within their Will.

“There is, unfortunately, no legislative definition of what constitutes a digital asset, but it should be understood as any information that exists in digital form and this can be online or on a storage device, which could include a smartphone, laptop or in the cloud.”

Natalie explained that this could include items with sentimental value, such as images or emails, those with an administrative function, such as documents or those with more tangible value, such as fiat currencies and Bitcoin.

“While these may hold a lot of value to an individual and their family, those that run a business should also consider what digital assets they hold in relation to their company and provide clear instructions on how they can be accessed in the event of that person’s death,” she added.

“There have been far too many cases already where businesses have been restricted to information that is essential to their operations due to the mental incapacity or unexpected death of a key stakeholder.”

As well as individuals taking steps to protect their own assets, Natalie believes that tech companies should be doing more to help families affected by a death.

“Unfortunately, every provider seems to have different rules on how an attorney or personal representative may access the digital assets of a person who is no longer capable of accessing the account themselves

“This is in part because there is no definitive definition under UK law of what constitutes a digital asset or protocol for its definition and so it is down to each individual business to determine what occurs to these after a person’s death or where they are incapacitated.”

She said that some providers, such as Facebook, have brought in procedures such as the “Legacy Contract” feature so that a person can nominate someone to have access to their account upon death, but for some accounts, such as Amazon’s Kindle or Apple Music, the assets are licensed to the individual and cannot be passed on.

“This is a developing area and we are likely to see many more cases like Rachel’s before the provisions for digital legacies become commonplace,” added Natalie.

“This is an issue which cannot be ignored or overlooked when making a Will or a Lasting Power of Attorney and while the legislation remains as it is, with no clear definition and or protocol, it is down to each individual to make sure their wishes are known.”

Top Tips for safeguarding your digital assets:

  • Create a clear Will which spells out your intentions – as many as 60 per cent of people in the UK do not have a Will.
  • Include similar provisions in a Lasting Power of Attorney so that your files can be accessed should you become incapacitated.
  • Make your family aware of all of the digital assets that you own, including social media accounts, crypto wallets and cloud storage.
  • Leave clear instructions on how you want your accounts and data to be handled after your death, such as deleting or managing accounts.
  • Wills are open to public access once probate is granted and so sensitive data should not be stored on them.
  • For the sake of security, consider adding passwords and logins to an encrypted password management service which can store such data on the person’s behalf, that can then be passed to loved ones.
  • As Wills relate to a specific point in time, make sure you update it regularly along with your asset schedule, as and when you open new accounts or store information.

If you are interested in speaking with Natalie on the subject of digital legacies, please speak to Tom Mason by calling 0121 355 4774 or emailing tom@je-consulting.co.uk.