Digital media is something that was probably an afterthought, if a consideration at all, just a generation ago. However, a person’s digital assets are an important consideration today, and the story of an Ontario woman engaged in a four-year battle with Apple over her late husband’s digital files is a great example of why careful consideration should be made in regards to digital assets when planning one’s estate.
Wife want’s access to husband’s Apple account
The story, which was reported recently by the CBC, stated that the wife and her husband shared an Apple account, but it was in his name alone. The husband, who passed away following a fight with cancer, had chronicled his battle. One of his wishes was that the material he put together online could be published in a book for family members.
The wife, who is the sole beneficiary and the executor of the estate, was quoted by the CBC saying that Apple is demanding “an order from the court to give me what my husband owned and is already bequeathed to me…it’s very strange.” The wife added that the process Apple is requiring her to follow is lengthy and expensive.
US law being applied to Canadians
The wife’s struggles with the California tech company began in 2017. When she initially contacted Apple, she was told all she needed to do was prove to them that she had a legal entitlement to her husband’s estate. She responded by providing Apple with his death certificate as well as a copy of his will.
However, CBC reported that Apple told her those documents were not enough and that she would have to obtain a court order. Going to court, though, is not quick or free. The woman’s lawyer said the situation was tricky because digital accounts are governed by the rules of the corporation who owns them, unlike a Canadian bank that has to turn over assets when a death certificate and will are produced.
Had this happened in Europe, things would be different for the wife. The European Union has laws dealing with digital assets, and tech companies must abide by those rules rather than the United States’ Electronic Communications Privacy Act, which was written in 1986, many years before modern digital assets were invented. Canada has no such law, though a group of lawyers, judges, and academics did draft the Uniform Access to Digital Assets by Fiduciaries Act. The Act, however, was only adopted by one province – Saskatchewan. The woman is urging other Canadian provinces to move to address the issue, telling CBC, “This is an area that needs to be addressed immediately … it’s very important that people are able to access their loved ones’ final photos and all kinds of things,”
We will be sure to update our readers if the story receives additional reporting, or if laws applying to digital assets from private tech companies become applicable in Ontario. In the meantime, we urge anyone with digital assets to include them in their will even if a court order may be needed to retrieve them.
At Derfel Injury Law, our team knows that being appointed a trustee or executor can be a stressful event. We regularly provide guidance to fiduciaries to ensure they are carrying out all of their obligations and making decisions that are in the best interests of testators or grantors, while minimizing the fiduciaries’ legal risks. Call us at 416-847-3580 or contact us online to schedule a consultation.