e-material & testamentary dispositions
by Roderick Ramage, solicitor, www.law-office.co.uk
first published in New Law Journal on 10 February 2017
This article is not advice to any person and may not be taken as a definitive statement of the law in general or in any particular case. The author does not accept any responsibility for anything that any person does or does not do as a result of reading it.
- In a paperless world, the administrator has a very demanding task to discover what the deceased owned and owed if the deceased left to accessible records.
- Computer Misuse Act 1990 and proposed reform.
A fully committed "citizen of the internet" suffers a fatal heart attack at his keyboard, the match, with which he was about to light a cigarette, drops into the waste bin, and his computer was damaged beyond repair in the ensuing blaze. His business, financial and private lives were conducted on the paperless principle. He died intestate, and the would-be administrator of his estate needs to identify his assets and liabilities. The name Yahoo came into her mind, and someone stumbled across this passage in its 2012 terms of service. "No Right of Survivorship and Non-Transferability. You agree that your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted."
That passage, although still on Yahoo’s website, is not included in its 20 January 2014 terms, that are likely to be found by UK users, but it is a stark (even if extreme) illustration of the precarious nature of your e-material. Google makes a different character of offering under the heading: “Submit a request regarding a deceased user's account. People expect Google to keep their information safe, even in the event of their death. … We recognize that many people pass away without leaving clear instructions about how to manage their online accounts. We can work with immediate family members and representatives to close the account of a deceased person where appropriate. …".
The full internet addresses for these three items are listed below. The three items can also be found by the following key words in Google searches: “yahoo not-transferable”, “yahoo terms of service 24 January 2014” and “google deceased user”.
https://policies.yahoo.com/ie/en/yahoo/terms/utos/index.htm (accessed 24/01/17)
https://support.google.com/accounts/troubleshooter/6357590?hl=en (accessed 24/01/17
knowing the deceased affairs
The biggest single problem in this field of work is not the terms of business of the providers of internet services but knowledge of the deceased’s affairs. In the past and still to a large extent in the present, the probate solicitor will be presented with papers, and sometimes boxes of papers, and they should tell all that one needs to know. If the deceased in this article had planned ahead and made a codicil, such as was published in New Law Journal in 12 September 2014 (and in Kelly’s Legal Precedents) and is copied below, his solicitor would have asked him to prepare a catalogue of the whole of his e-material the following:
(personal) email, domain and web-hosting accounts, letters, diaries, blogs and other “scribbling’s, social media, music, photographs, videos, e-books, family histories and trees, medical records, records of “things” (eg collectibles, antiques, books, cars);
(financial) bank accounts, borrowings, insurance policies, investments, to let, holiday, residential and properties, accounts, tax returns, professional, credit and similar cards, advisers;
(business) records, accounts etc;
(potentially realisable) writings, artwork and other creative material; and
in effect all that a careful adviser would wish to know in a purely physical estate. For each provider of the electronic services through which the e-material is created and held you need to know:
- the name and contact details of the provider;
- the client’s name (including nick-names) and contract details held by the provider,
- account number(s);
- ID of other log-in details;
- memorable questions and answers; and
- whether any alternative users identified to the providers.
But where our deceased has left no records and, as in the opening illustration, they have been irreparably damaged, in a paperless world, the administrator has a very demanding task to discover what the deceased owned and owed create the missing checklist, to a large extent by guesswork and reliant on the co-operation of cautious service providers, who have more interest in protecting themselves from fraud than giving help to the survivors of the improvident and which operate and hold the deceased’s property in other jurisdictions. The so-called “executor’s year” has an added urgency in this context. Some providers of electronic services reserve a right to close accounts and delete material held in them after one year’s inactively on the account, which could of course have expired before the date of death, but sometimes offer a month’s period of grace to preserve an account
Computer Misuse Act 1990
Not only has the would be administrator the two problems of lack of knowledge and the varied and largely unhelpful terms of business of the various providers, but she must be aware of the dangers of the Computer Misuse Act 1990.
By s1 “a person is guilty of an offence if—
(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer or to enable any such access to be secured ;
(b) the access he intends to secure, or to enable to be secured, is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.”
Section 17(5) provides that “Access of any kind by any person to any program or data held in a computer is unauthorised if—
(a) he is not himself entitled to control access of the kind in question to the program or data; and
(b) he does not have consent to access by him of the kind in question to the program or data from any person who is so entitled .. .
There is a serious risk that anyone attempting to gain access to the deceased e-material, even if she is a personal representative under a grant of probate or administration, commit an offence under this Act, unless consent had been given by the deceased expressly during his lifetime or by will or codicil or can be implied, eg by testamentary directions to deal with his property: see the consent clause in the accompanying precedent codicil.
The Law Commission, at www.lawcom.gov.uk/project/wills, states that “It will consider whether the law could be reformed to encourage and facilitate will-making in the 21st century: for example, by taking account of developments in technology and the medical understanding of capacity.” It expects to publish a consultation paper in Spring 2017, and it is to be hoped that it will address and eventually provide answers to the problems highlighted in this article.
the original note and precedent (updated)
A : note
Computer hardware is a personal chattel as defined in the Administration of Estates Act 1925 s55(1)(x) as altered from 1 October 2014 by the Inheritance and Trustees’ Powers Act 2014, but is not a personal chattel if, at the date of death, it was used by the intestate solely or mainly for business purposes. The physical devices (memory sticks, CDs, floppy discs, external hard discs etc) used in connection with a computer are capable also of being personal chattels, again subject to the business test. The programs and all data files (documents, images, sound etc), even if stored on a computer or a device which is a personal chattel, cannot be personal chattels, because they are not tangible property. The programs (almost certainly) and the data files (quite possibly but still unsettled) if held in the “cloud” are not the property of the person who uses them and, in the case of data files placed them there. Therefore the property characteristics of what in this precedent is called ‘E-material’ are not altogether clear and, where the computer or device is used for business, are likely to be mixed. Where most, perhaps sometime even all, of a person’s electronic data (documents, images sounds etc, both for work and private) is held in electronic form accessible only by computer, it becomes important to decide whether, on a person’s death, it is to be treated as ephemera and be abandoned or accidentally pass with the hardware or whether there it includes material of value or interest, the disposition of which cannot safely be left to chance.
This precedent should, so far as this class of property and its testamentary disposition are concerned, be treated as experimental and an indication of matters to be considered. In most cases, at least for the present and immediately foreseeable future, it may well be that the deceased’s e-material may be left simply to follow the hardware with no special testamentary provisions, but this is unsafe, as e-material is increasingly held in the cloud instead of the user’s hardware.
This precedent assumes however that the testator has a significant amount of IP, some of it work related, which is expected to be of use or interest to others. It is offered as a codicil to distinguish it from the testator’s other and legally better understood property, but could be included in a separate section of the will.
B : codicil (or e-material section of a will)
THIS IS A [SECOND] CODICIL to the will dated (date) [and the first codicil dated (date)] of me (name) of (address) [and late of (address)].
• In this codicil the expression “E-material” means all electronic computing and communications equipment and accessories, operating systems, software, websites, ‘cloud’ and other accounts, access codes and data and includes analogous material not described by the previous words of this clause.
• My access codes are in a [file named “codes” on a [CD (or) USB memory stick] (or) he [small black] notebook which I normally [carry in my jacket pocket (or) keep in the top right hand drawer of my desk (or) have deposited with (name) (or) [describe where or how the access codes are to be found]].
2.1 I direct my Trustees to request my nephew (name), who in my opinion is both discreet and the most computer literate of my relations to carry out for them the tasks in this codicil or if he is unwilling to do so to instruct [my computer advisers (name) of (address) (or) a person whom hey select] to do so.
2.2 If my nephew (name) agrees to carry out the tasks I give to him [a (or) an additional] gift of £[500.00] free of tax. If this task is carried out by [(name) of (address) (or) some other person appointed by them] my Trustees shall pay their fees [at the rate and on the terms in force between them and me at the date of my death or if there are none] on their normal terms.
Exclusion from my estate
3 I exclude my E-material from my personal chattels disposed of by my will.
Consent to access
4 I consent to my Trustees having access to any computer and any computer program, data or service in or in connection with which or through which any of my E-material exists and can be accessed/
Disposal of my E-material
5.1 The tasks in respect of my E-material that I direct my Trustees to ensure are performed are as follows:
(a) to separate my work from my private files;
(b) to [destroy my work files irrecoverably (or) transfer my work files to [my employer (or) my remaining business partners (or) any person who acquires or carries on my business (or) (name) of (address)];
(c) to destroy irrecoverably all [other] files which I identity in writing whether on a paper left with my will or in my note book of access codes or in one of my computer files identifiable by name as relating to the destruction of files;
(d) to maintain my personal website for not less than [six] months and superimpose a notice of my death on my home page;
(e) to identify and copy into one place all files which could be of interest or use to any person interested in my [and my [husband’s (or) wife’s (or) spouse’s [civil] partner’s] family and family history or other interests or fields of study and provide copies of the files in computer readable form requested by any such person;
(f) to identify and copy into one place all files which could be of interest or use to other individuals or the public or sectors of the public a large and enquire of such individuals and appropriate bodies whether they wish to receive copies of some or all the files and to provide copies in computer readable form requested by any such individuals or bodies;
(g) to categorise my files and make a list of the categories and with a short descriptions of the files in each category, provide copies of the list to my Trustees and to [any person named by them (or) the beneficiaries of my will (other than charities and other bodies) (or) [list names] and provide to any of them copies in computer readable form of such of the files as any of those person requests; and
(h) to do all other things that are necessary for the performance of the above tasks or ought reasonably to be done in connection with or in addition to them.
5.2 On the completion of the above tasks [my Trustees shall hold my E-Material as part of my personal chattels disposed of by my will (or) I give my E-material to (name) of (address)].
5.3 My Trustees shall pay the costs including subscriptions fees of performing the above costs out of my residuary estate.
Confirmation of will
6 I confirm my will [and first codicil] in all other respects.
[testimonium and attestation]
copyright Roderick Ramage
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