Book review of The Digital Estate (2018) by Leigh Sager

 In Comment

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 1st Edition  |   Published by Thomson Reuters  |  ISBN 978-0-414-06190-3

Purpose

Book review Tolleys Taxwise III see the purpose of this book as a source of explanation of the digital world for the professional adviser acting as, or as agent for, personal representatives, trustees, attorneys and deputies in England and Wales.

The Digital Estate also examines the law of digital assets, with particular emphasis on the activities, powers and duties of personal representatives, trustees, attorneys and court appointed deputies and their advisers.

It distinguishes between information which can be found in digital records on devices – which is not property – and digital property rights and interests which may be transferable and have value.

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It provides a useful tool for drafting Wills and trusts and helps a PR, trustee, attorney or deputy comply with the law in handling digital property rights and interests across jurisdictions.

Content

The book provides an introduction to the technical understanding of the structure and operation of computer systems, the internet and the World Wide Web for the non-geek. It also examines the powers and duties of fiduciaries in the context of managing digital assets and in particular the death of the owner or user.

It topically considers the modern law of electronic documents and signatures and contains plenty of cross referencing to case law and statute. It also consider the work of the Law Commission in this area and what may eventually happen with regard to Wills.

To help the fiduciary properly deal with the digital estate in Wills and trusts Leigh Sagar has reflected on how to characterise the components of the digital estate and apply his analysis to cloud computing and service agreements; intellectual property and virtual finance such as bitcoins and other cryptocurrencies.

There is also a section on suggested drafting for dealing with the digital estate.

Structure & Layout

The book is divided into three parts:

  • Introduction – covering chapters on technical matters and explanations; fiduciaries roles, duties and powers and electronic documents and signatures
  • Information – with a chapter on information as property which includes how different jurisdictions view digital records
  • Digital Property Rights and Interests – which includes chapters on cloud technologies, intellectual property; virtual finance and drafting for the digital estate

Tools

Chapter 8 on drafting for the digital estate contains some suggested definitions and clauses for drafting Wills and trust deeds in relation to passing on or transferring the digital estate with appropriate authority. Practitioners are always seeking precedents and whilst taken out of context terms can be dangerous we currently lack appropriate terminology for drafting appropriate clauses so this work is a welcome assistant in dealing with the modern world where legislation and case law to help us is sadly lacking.

Clarity & readability

I do not think the division of the book into parts added anything to its clarity or readability. Personally, I would have found the chapter division quite sufficient.

As a lawyer and not a computer specialist I found the introductory section on how computers and the internet work interesting and helpful to an understanding of what is and what is not property.

The style is succinct with plenty of references to the law to support the statements made and by the use of footnotes these references do not clutter the flow of the text which makes for easy reading.

Relevance to practitioners

This little book is a godsend to professional advisers working in the field of Wills, estates, trusts and the management of assets for those incapable of doing so themselves. It steers us away from breaking the law and includes plenty of practical tips such as “Where a person who does not have or is not entitled to a grant exercises the contractual right of the deceased in a contract between him and a cloud service provider by typing in a username and password to log in to the deceased’s account, that person is likely to be an executor de son tort”.

The book does the hard work of analysing the law we have and applying it to this new world of digital information and property to give us a way to advise our clients and act appropriately ourselves within the law.

It also provides the non-technologist with the terminology to discuss with clients, those in authority and in commerce as providers of various goods and services, the correct treatment of those products when fiduciaries are involved.

All in all, this book is an essential addition to the library of the Wills, Trusts and Estates practitioner.

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