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Access to the ‘digital legacy’

More than 150,000 people die each year and therefore about the same number of estates are settled. Almost without exception, deceased people leave behind digital...

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More than 150,000 people die each year and therefore about the same number of estates are settled. Almost without exception, deceased people leave behind digital “possessions,” such as social media accounts, email accounts, documents stored in the cloud and (usage rights to) all kinds of media and entertainment. This is also known as the “digital legacy.

In 2021, the University of Amsterdam completed a study[1] into exactly what this “digital legacy” entails, what legislation applies here, what bottlenecks survivors experience, and to what extent additions/adjustments to legislation are necessary. The research reveals, among other things, that a legal framework for digital estates is lacking and that terms of use of digital media services have a wide variety of contractual provisions regarding the death of the user. This creates legal uncertainty.

Partly because of this legal uncertainty, Microsoft last year refused to cooperate with a request by four heirs to grant access to their deceased son and brother’s Hotmail and OneDrive accounts. With access to these accounts, the heirs hoped to obtain information that would allow them to settle the estate and hoped to distill from the emails names and (email) addresses of friends and acquaintances so that they could inform them of the death of their son and brother. In connection with the refusal, the heirs were forced to seek in summary proceedings – in brief – fulfillment of the usage agreement their son/brother had entered into with Microsoft.

In its December 1, 2021 ruling,[2 ] the Amsterdam Interlocutory Court considered that the core of the dispute revolves around whether heirs are entitled to access to a deceased person’s digital accounts and then answered this question in the affirmative. In doing so, the Provisional Court based its ruling on the saisin rule, which, in summary, states that in principle the heirs “continue” the position of the deceased:

“Pursuant to Article 4:182 of the Civil Code, with the death of the testator, the heirs succeed him by operation of law in his rights amenable to transfer and in his possession and possession. They are beneficiaries by universal title within the meaning of Article 3:80 of the Civil Code and continue the legal status of the testator. A contract is a transferable right in the aforementioned sense unless 1) the law provides otherwise or 2) it follows otherwise from the agreement itself. It is up to Microsoft to make a sufficiently plausible case that an exception exists.”

According to the Interim Injunction Judge, none of the aforementioned grounds for exception arises, and – referring to two standard judgments handed down by the Bundesgerichtshof (the highest German court) in this area – rules that the rights from the deceased’s use contract passed to his heirs in full by operation of law upon his death. By extension, the Provisional Judge therefore ordered Microsoft to provide the heirs with access to their deceased son and brother’s Hotmail and OneDrive accounts.

This ruling clarifies the position of heirs in a digital estate and provides a handle for heirs to access a deceased person’s digital accounts.

This contribution was written by mr. Jeroen van der Pouw Crane, affiliated with the Inheritance Law and Insolvency Law practice groups.

If you have any questions as a result of this article, please contact one of our probate lawyers.

[1] Research results University of Amsterdam – ‘Data after death – legal aspects of digital estates’

[2] Amsterdam District Court December 1, 2021, ECLI:NL:RBAMS:2021:7090