The Digital Devices (Access for Next of Kin) Bill is currently progressing through parliament, having had its first reading on 18 January 2022. The second reading has been delayed to 18 March 2022.
This private members’ Bill is designed to give a deceased or incapacitated person’s family immediate access to their digital data. Currently there is no legislation on rights of access which means that digital assets can be lost on death or if a person loses capacity. While it is possible to gain access in such circumstances, unless specific provision has been made this usually involves having to take legal action against digital platforms, and the ease with which that can be done depends upon the access mechanisms that have been put in place by the relevant technology companies.
Democratic Unionist Party MP Ian Paisley, who introduced the Bill, estimates that £25 billion of assets in the UK are held in protected electronic storage facilities such as online accounts, cloud storage, and social media. When someone dies it is important to gain access to such assets so that their estate can be properly administered, and any delays can cause difficulties. If the deceased had made proper provision for their digital assets in their will, appointed an executor and left details of relevant passwords, difficulties should be lessened. However, it is worth noting that we do not usually own all the online assets that we have access to, including photographs that may have been uploaded onto social media platforms, so it is important to take proper advice about digital assets when estate planning, so that any data currently held on licence only, or stored on a social media provider’s cloud, can be accessed.
In any case, it is where proper provision has not been made that difficulties most often arise. Taking legal action can be a lengthy and expensive process and can delay the administration of an estate. Also, if the administrators of an estate are required to take legal action to access the data, the costs of doing so (if not recovered from the platform that the action is taken against) would come from the estate, diminishing its overall value. However, for family members what is often most upsetting is the lack of access to digital assets of sentimental value such as photos, which can add to the grief of losing a loved one.
Where someone loses capacity suddenly it is often necessary to gain access to their digital data urgently, in order to continue to continue make provision for them and any dependents. The more digitised a person’s life, the more crucial it will be to gain access rapidly. If the incapacitated person had appointed an attorney under a Lasting or Enduring Power of Attorney, the attorney would in theory be able to access their accounts, but again a lot would depend on whether they had the relevant passwords, and the tech companies’ access mechanisms.
It is also, unfortunately, sometimes necessary to take legal action to assert a legal right that already exists, rather than to obtain that right. Therefore, even where an executor or attorney has been properly appointed, if they do not have physical access to the data they require (such as by way of a password or via a device), they may need to take legal action in any case.
To counter these difficulties the Bill proposes that the next of kin would automatically gain access to the contents of the digital platforms held in the deceased person’s name on their digital device. Where the deceased did not leave access codes for their devices, the tech companies would be responsible for unlocking these devices for the next of kin. Given how far our lives are lived in the digital arena, I would welcome these proposals.
If you need help accessing a deceased or incapacitated person’s digital data, or have any other difficulties arising with respect to any other matters referred to in this article, please contact Rachel Waller or another member of our expert Contentious Probate team or a member of the Private Client team on 020 7631 4141 or email firstname.lastname@example.org / email@example.com
The above is accurate as at 03 March 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.