On October 5, 2023, the Government of Yukon introduced the Fiduciaries Access to Digital Assets Act.
This new law will clarify fiduciaries’ access to the digital assets of deceased or incapable individuals, while respecting their privacy and carrying out their final wishes.
At present, the trusts and estates law does not adequately address how fiduciaries may gain access to these digital assets. With no legislative framework, online terms of service agreements may determine the fate of digital assets of a deceased or incapable person.
The proposed Act would:
- facilitate fiduciaries’ access to digital assets in order for them to properly administer the property of the individuals on behalf of whom they are acting;
- clarify the rights of fiduciaries to act in accordance with the document that empowers them,
- clarify the duty of service providers to grant access to digital assets;
- adhere to the traditional approach of trusts and estates law, which respects the privacy and intention of the individuals on behalf of whom fiduciaries act;
- clarify when the terms of a service agreement may limit access to digital assets; and
- affirm that service providers who comply with this enactment to give fiduciaries access to digital assets will not be subject to liability.
In an increasingly digitally-driven world, this modernized legislation would provide Yukoners greater certainty and predictability that their fiduciaries will be able to execute their wishes with respect to digital assets.
Our government is taking proactive measures to introduce this new law to reflect the world we live in by removing potential hurdles when dealing with a loved one’s estate. By working to modernize our legislation, we are helping ensure estate planning keeps pace with an ever-changing digital landscape.
Minister of Justice Tracy-Anne McPhee
A fiduciary is a person who acts on behalf of another person or persons and is bound both legally and ethically to act in that person’s best interests. Examples of a fiduciary include the executor of someone’s will or someone acting under a power of attorney.
Fiduciary types include:
- a personal representative for a deceased person;
- a guardian appointed for an individual;
- an attorney appointed for an individual who is the donor of the power of attorney;
- a trustee appointed to hold in trust a digital asset or other property of an individual; or
- the Public Guardian and Trustee, under specific circumstances.
Digital assets include any record of information stored on a digital platform. This can mean documents, e-mails, blogs, photos, audio and video files, e-books, as well as records of information concerning bank accounts.
Similar legislation is in place in other jurisdictions including New Brunswick, Saskatchewan and Prince Edward Island.
The proposed legislation is based on the recommendations from the Uniform Law Conference of Canada and the Uniform Access to Digital Assets by Fiduciaries Act.
Renée Francoeur
Cabinet Communications
867-334-9194
renee.francoeur@yukon.ca
Jasmine Doll
Communications, Justice
867-667-8114
jus.comms@yukon.ca