Ontario falling behind on digital assets legislation

Ontario is playing catch-up as other Canadian jurisdictions lead the way on digital assets legislation. 

More and more of our lives are being lived online, but many testators are still prone to forgetting this new class of property when drafting a will. For the friends and family left behind, it can be emotionally (and financially) devastating to find themselves locked out of a loved one’s accounts after their passing. 

Privacy protection rules often require a court order before key information can be turned over about a deceased person’s account, and it can cause big problems if an executor is locked out of online bank accounts. 

I would have expected legislators in the country’s largest province to address this increasingly prominent gap in our law, but instead, it is two of our smallest jurisdictions that are blazing the trail on digital assets. 

In Saskatchewan, the Fiduciaries Access to Digital Information Act tackles the problem by granting executors the right to access the personal digital assets of a deceased account holder who previously entered an agreement with a custodian – such as a bank, rewards program or social media company – and voiding the portions of any agreement that attempt to limit an executor’s access.

Prince Edward Island’s similar Access to Digital Assets Act also confirms an executor’s right to access personal digital accounts, but is a little weaker when it comes to overriding online agreements with custodians, since they are allowed to enforce their limits on access if the deceased agreed to the restrictions “by an affirmative act separate from the account holder’s assent to other provisions of the service agreement.”  

In either case, testators who wish to maintain their privacy in death can do so, preventing executors from gaining access to certain digital accounts via instructions in their will.  

At Laredo Law, we help testators sidestep the access issue altogether by prompting new clients to create an inventory of all their digital assets – including social media profiles, email accounts, online banking and even loyalty points – as well as the passwords associated with each. 

Obviously you don’t just want to have a list of all your passwords lying around for someone to find, but you can deposit the details with your lawyer or another trusted person for safekeeping, along with instructions for their use following your passing. 

That’s generally a better option than a safety deposit box, where the bank’s strict access rules following death of the owner may hold up the process for heirs.

Disclaimer: The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.