Disposition of Digital Assets In Our Technological Age
As we become more digitally dependant, we also become more reliant on technology. We now live in a digital age, and with this, we have seen an increase in people holding assets referred to as ‘digital assets’. Digital assets are defined as files stored and held electronically, which exist as data and which have value.
They can include simple items such as photos containing precious memories through to complex items such as cryptocurrency, shares, bonds, Facebook accounts or even frequent flyer miles.
Section 6 of the Wills Act 1970 (WA) (“the Act”) provides that a person may dispose of property to which they are entitled at law or in equity by a Will signed or made in a manner required or permitted by this Act and property is defined as any real and personal property or any interest therein and any thing or chose in action. However, there are issues about whether digital assets fall within the meaning of “property”.
There are three issues which must be considered when looking at the disposition of digital assets. Firstly, notwithstanding the specifics contained within the Act, whether or not a person’s digital assets actually fall within its definition is unclear. For example, service agreements can restrict user property rights. A common example of this is membership of the QANTAS frequent flyer program, in fact, section 8.3 of the QANTAS frequent flyer program specifically states that upon death, and pursuant to the service agreement, membership of this program is automatically terminated, with all points accrued being cancelled and hence not redeemable or transferable.
Secondly, if conflicting instructions are received with respect to digital assets, which instructions take precedence? For example, if a testator notes their intentions on Facebook’s Legacy Contact Tool regarding their Facebook account but provides different instructions in a valid Will, which instructions prevail?
Thirdly, given the extensive “fine print” common in ‘terms and conditions’ which are often attached to digital assets, Estate planners may find themselves reviewing hundreds of pages of individual policy and service agreements for each digital asset owned to ascertain how a testator can actually deal with that asset upon death. This could be an extremely costly exercise.
The NSW Law Reform Commission has made some suggestions with regard to having digital assets defined in legislation. However, this may only partially deal with the issue as digital assets continue to evolve as we continue in our digital age.