As estate planning has progressed over the years, let us look at how the law has reformed itself to keep pace with technology.
Can a digital message be used as "final and last testament"?
So far there is no local case on whether an SMS or the use of messaging media which as SMS, Whatsapp or Telegram could be used as "final and last testament".
However, there was a case in Queensland, Re Nichols (2017) QSC 220 (9 October 2017) which the court has accepted that an unsent Short Messaging Service (SMS) indicating the person's last wishes should be held up as the final wishes of the deceased. The decision was handed down following no evidence of any other will created by the deceased man who tragically took his own life.
Interestingly, the judgement was made even though Queensland law states that " Wills need to be in writing and signed off by two witnesses. If a person dies without a will, they are subject to their assets being divided as per the state's Succession Act." Singapore law states likewise. Hence it is not impossible that under the same scenario, the judgement may be made likewise.
Read more here: https://www.queenslandjudgments.com.au/case/id/301131
What are some areas an executor or administrator needs to consider when it comes to "digital estate"?
Under the Singapore Electronic Transactions Act clause 2 (1), the legal definition of an electronic record means "a record generated, communicated, received or stored by electronic means in an information system or for transmission from one information system to another." As the Act enacted was since 1998, a digital asset such as cryptographic currency like "Bitcoins" are also considered an electronic record.
However, there are still many questions, such as
- Is a digital record is a digital asset?
- Is a digital asset is an asset or estate recognizable by law?
- Can a digital asset be bequeathed?
When it comes to PDPA, is your data protected after your death?
Personal Data Protection Act states that the collection, use and disclosure of personal data by organisations in a manner that recognises both the right of individuals to protect their personal data and the need of organisations to collect use or disclose personal data for purposes that a reasonable person would consider appropriate in the circumstances. PDPA applies to information that can identify the individual from the data alone, or generic data that is combined with a unique identifier that can be associated with or made to relate to an identifiable individual.
PDPA defines an individual as "a natural person, whether living or deceased".
But PDPA does not apply to the following categories:
- Personal data that is contained in a record that has been in existence for at least 100 years;
- Personal data about a deceased individual who has been dead for more than 10 years.
PDPA applies to a limited extent for personal data about a deceased individual who has been dead for less than 10 years:
- Does not apply to business contact information
- Notification of purposes for disclosure of personal data
- Obtaining consent for disclosure of personal data
- Disclosing personal data for purposes which a reasonable person would consider appropriate in the circumstances
- Making a reasonable effort to ensure the accuracy and completeness of personal data that is likely to be disclosed
- Making reasonable security arrangements to protect personal data
Read more: Guidelines in PDPA