Access to digital assets and records upon death or incapacity

Report

Report 147 (PDF, 1.4 MB): Access to digital records upon death or incapacity 

• Tabled in parliament: 5 March 2020
  
• Implementation: At the November 2021 Meeting of Attorneys General, participants agreed that the work program priorities for 2022 will comprise an access scheme for digital records after death or incapacity, led by NSW: Meeting of Attorneys-General (MAG) communiqué – November 2021.
  

Other documents

• Research Report 15 (PDF, 1.0 MB): Access to digital records upon death or incapacity: survey results 
  
• Consultation Paper 20 (PDF, 692.0 KB): Access to digital assets upon death or incapacity
  

Submissions

• Submissions
  
• Preliminary submissions
  

Terms of reference

Reference received: 26 March 2018

Pursuant to section 10 of the Law Reform Commission Act 1967, the NSW Law Reform Commission is asked to review and report on:

1. Laws that affect access to a NSW person’s digital assets after they die or become incapacitated.
2. Whether NSW should enact legislation about who may access a person’s digital assets after they die or become incapacitated and in what circumstances.
3. What should be included in any such legislation.

In particular, the Commission is to consider:

a) Relevant laws including those relating to intellectual property, privacy, contract, crime, estate administration, wills, succession and assisted decision-making.

b) Policies and terms of service agreements of social media companies and other digital service providers.

c) Relevant jurisdictional issues, including the application of NSW laws, Commonwealth laws and the laws of other jurisdictions.

d) Appropriate privacy protections for the electronic communications after a person dies or becomes incapacitated.

e) The Uniform Law Conference of Canada’s Uniform Access to Digital Assets by Fiduciaries Act (2016) and the American Uniform Law Commission’s Revised Uniform Fiduciary Access to Digital Assets Act (2015).

f) Any other matters the NSW Law Reform Commission considers relevant.