testamentary disposal of testator’s e-material (note and precedent codicil)
by Roderick Ramage, solicitor, www.law-office.co.uk
first published in New Law Journal on 12 September 2014
also published in the 21st edition of Kelly’s Legal Precedents, Butterworths, 2014
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.
The precedent, because of the novelty of the subject matter should be treated as experimental
Computer hardware is a personal chattel as defined in the AEA 1925 s55(2)(x) before it is altered from 1 October 2004 by the ITPA 2014, but it is not a personal chattel under the new definition if, at the date of death, it was used by the deceased solely or mainly for business purposes. The physical devices (memory sticks, CDs, floppy discs, external hard discs etc) 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 or, in the case of data files placed them there: see work by Queen Mary University of London at ww.cloudlegal.qmul.ac.uk. Therefore the property characteristics of what in the following 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 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 electronic data may be left simply to follow the hardware with no special testamentary provisions. This precedent assumes however that the testator has a significant amount of IP, some of it work related, which is expected to be of value, 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.
If the e-material is valuable, the adviser must consider inheritance tax and the use of the Inheritance Tax Act 1984, s 143
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)].
1.1 In this codicil the expression “E-material” means all electronic computing and communications equipment, devices and accessories, operating systems, software, websites, ‘cloud’, storage and other accounts, access codes and data and includes analogous material not specifically referred to or described by the previous words of this clause.
1.2 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 they 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 £[1,000.00] 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.
disposal of my E-material
4.1 The tasks in respect of my E-material that I direct my Trustees to ensure are performed are as follow, which are to be performed subject to clause 5 of this codicil:
(a) to access if possible files for which I have no left access codes;
(b) to separate my work from my private files;
(c) 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)];
(d) 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.
4.2 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)].
4.3 My Trustees shall pay the costs including subscriptions fees of performing the above costs out of my residuary estate.
5 My Trustees shall identify the files in my e-material, whether business or private, whose contents have or might have pecuniary value, and deal with, apply and dispose of them and their contents in accordance with:
(a) any agreements made by me in respect of them; and
(b) where there are no such agreements, my will [and any codicil to it].
If there is any conflict between this clause and clause 4.2 of this codicil, this clause prevails over clause 4.2.
confirmation of will
6 I confirm my will [and first codicil] in all other respects.
[testimonium and attestation]
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