Picture this, your daughter has passed on, and you want to access her Facebook account, but Meta, the social media platform’s parent firm, won’t allow you. So you go to court, but the judge rules against you.
This was the plight of the parents of a 15-year-old girl in Germany who passed on after a train ran over her in 2012. Her parents wanted access to her account to establish whether she was being bullied before her death.
Wanjiku Karugo, an Advocate of the High Court of Kenya and founder of Wanjiku Karugo & Associates Advocates says that when you want access to the social media channels of a loved one who has passed on, you can petition local courts to issue an order.
However, as established in the Germany case, the right to privacy for the deceased will come into play. This then begs the question, how do you ensure your loved ones benefit from your digital assets once you die?
Digital assets are defined in the Finance Act 2023 as anything of value that is not tangible, and cryptocurrencies, token codes, and numbers held in digital form and generated through cryptography.
Digital assets, therefore, include cryptocurrencies such as bitcoins, data, images, video, and written content.
Cryptocurrency ownership
This question of handling digital assets has become more pressing with the rise of digital asset ownership in Kenya.
A United Nations Conference on Trade and Development report released in June last year said that 8.5 percent of the population, or 4.25 million people own cryptocurrencies in the country.
Unfortunately, Kenyan law does not explicitly provide for what will happen to digital assets upon their owner dying intestate (not having made a will).
The Succession Act governs the distribution of a deceased person’s property but does not exclusively mention digital assets.
This leaves room for potential losses and endless court disputes.
Robert Muoka, a technology lawyer, says the best way to ensure your digital assets do not disappear with your demise is to list them in your will and establish a multi-signatory wallet for the executor of your will and your beneficiaries.
Mr Muoka, also the Chairman of the Blockchain Sub-Committee at the Law Society of Kenya Nairobi Branch, says that digital assets are treated as securities or stock and can be accepted in your will.
“People with cryptocurrencies can have the assets included in the calculation of their wealth and can then include the same in their wills,” says Mr Muoka, adding, “If you are to leave a will for your cryptocurrencies, you will have to provide the passcode details on how your crypto wallets can be accessed.”
With cryptocurrency investments, you are given a private key to access your crypto wallet. If you lose the login codes, they will be forever lost and inaccessible, highlighting the importance of detailing.
A will for your cryptocurrency assets, Mr Muoka says, should contain a list of the assets, identify the type of assets each beneficiary will get, and provide guidance on how they can access them through the multi-signatory wallet.
When should you write a will?
“As soon as you get your first job, you should consider writing your will. Then keep updating it with time as the assets in your name increase,” Ms Wanjiku tells the Business Daily.
She advises that you write everything, including your social media pages and the passwords.
“Let your lawyer have a copy of your will and ensure that someone else you trust also has a copy. Let your family know you have a will and the lawyer you are dealing with. This will promote transparency upon your death,” notes Ms Wanjiku, an advocate with 10 years of experience.
Contentious issues to focus on when writing a will
You should ensure you have full capacity when writing your will.
“Ensure that no beneficiary is a witness so your will is not invalidated. Courts also examine whether the will was made out of the deceased’s volition or he or she was coerced. Ensure that you have the mental and physical capacity when writing your will. If you find out you are sick, write your will before starting your treatment and ensure everything is in order,” says Ms Wanjiku.
How do you protect your digital accounts from being hacked after writing a will?
Seeing that you will reveal your digital passcodes when you write a will, Ms Wanjiku advises that you be careful with the lawyer that you pick to ensure that it is a person you can trust.
“Alternatively, instead of putting the digital codes and passwords for your digital channels in your will, you can list the assets in the will and then state that the digital assets codes are in a safety deposit box in the bank. Once you pass on, the beneficiaries will be given access to the passcodes by the bank,” says Ms Wanjiku.
Most digital platforms allow users to decide how their accounts will be disposed of upon death. Facebook, for example, memorialises your account if it is notified of your death and provides a platform for your friends and family to come and share their memories with you.
Twitter and YouTube can deactivate your account upon your death. With Gmail, you can give your friends and family access to your login details or utilise the Google Inactive account management feature.
With no law addressing the succession of digital assets in the country, Kenyans must focus on including digital assets in their wills to ensure that their families can inherit them.
