Isle of Man: Dealing With A Digital Presence On Death Or Incapacity

Last Updated: 27 October 2017
Article by Faye Devlin

Digital assets are closely intertwined with our everyday life, from supermarket reward cards, photographs, blogs, music accounts, online banking, emails, eBooks, social media accounts...the list goes on.

Failing to provide for the future of digital assets can have consequences and may cause additional stress to family members after the death or mental incapacity of the loved one in question.

The law in the Isle of Man is unclear of the position of Digital assets. Some digital assets that contain rights such as digital property rights (which include an individuals' ownership of copyrights, trademarks and design rights) can be inherited or passed by testamentary disposition in a Will or rights can be granted in respect of such assets through powers of attorney. However, although physical digital assets can be transferred this way too (e.g. Mp3 players, tablets, laptops, USB drives), the digital content on them does not necessarily legally pass with them. This is because these assets do not vest in the personal representative after death, it being left up to the content provider to decide who can access these records, if anyone.

This is because much of the content we access and download online during our lives is subject on our death or incapacity to contracts entered into with the provider at the time we signed up, via the provider's terms and conditions.

Many assets that we consider to own are often governed by "End User Licence Agreements" (EUAs). These Agreements stipulate that the user does not own the asset but merely has use of it until the end of their life.

It does, however, depend on the provider. Some digital assets can be inherited. Certain social media sites have guidance pages detailing the options available to family members in the event of a user's death or mental incapacity, such as closing the account or page.

However, on the whole it is very unlikely anyone other than the original user will be granted access to the account in question.

Tips for ascertaining the future of personal Digital Assets

  • Draw up a list of all of the accounts and media that you have.
  • Discuss your wishes for all of your online and digital assets with your Advocate when planning your Will and consider creating a Letter of Wishes that is stored with the Will to cover this area.

    The Letter of Wishes should be updated periodically during your lifetime to reflect any changes to your accounts.
  • Read the Terms and Conditions in your various contracts with online providers to ensure that you know what you have agreed to.
  • Print off photographs and keep hard copies of important digital data. You must make sure replicating or downloading the asset is permitted within the Provider's terms of use.

Above all it is crucial to consider which digital assets you have and consider how you would like these to be dealt with in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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