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
DISCLAIMER
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
discussion note
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
precedent
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)].
background
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]].
expert
adviser
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.
pecuniary value
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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