New South Wales Law Reform Commission Consultation on Digital Assets after Death

The Law Reform Commission in New South Wales, Australia has released a consultation paper on laws that affect access to a person's digital assets after they die or become incapacitated.

As a background document explains:

"In general, a person's digital property and electronic communications are referred to as 'digital assets'. These can include photographs, videos, emails, online banking accounts, cryptocurrency, domain names, blogs and online gaming accounts."

"Digital assets can have significant personal, sentimental and even financial value. Permitting access to these assets after the person's death or incapacity is therefore essential. However, family members and fiduciaries can encounter significant barriers in acquiring access, largely due to the terms of service agreements between users and service providers."

"In response to these barriers, there is an emerging trend of overseas litigation involving grieving families seeking access to their deceased relative's digital assets. Australian courts appear to have not yet considered these issues."

"The NSW Law Reform Commission has been asked to review and report on access to digital assets upon death or incapacity. Our review will consider the current state of the law, developments that have occurred in other jurisdictions, and whether NSW should enact legislation to address the difficulties in accessing the digital assets of a deceased or incapacitated person."

The consultation document looks at the situation in the United States, Canada, and the European Union.