Estate Planning in the Digital Age: Adapting the Law of Succession Act to Address Challenges Presented by Digital Assets. Submitted in partial fulfillment of the requirements of the Bachelor of Laws Degree, Strathmore University Law School By OMONDI RENEE GRACE 145722 Prepared under the supervision of Dr. Peter Kwenjera March 2025 11684 Words i Declaration I, OMONDI RENEE GRACE do hereby declare that this research is my original work and that to the best of my knowledge and belief, it has not been previously, in its entirety or in part, been submitted to any other university for a degree or diploma. Other works cited or referred to are accordingly acknowledged. Signed: ...................................................................... Date: 10th March 2025 This dissertation has been submitted for examination with my approval as University Supervisor. Signed: .......... ................................................................ Dr. Peter Kwenjera Date: 10th March 2025 ii Acknowledgments I am deeply grateful to God; His grace has been sufficient throughout this journey, and I have witnessed His fullness. To my supervisor, Dr. Peter Kwenjera thank you for your invaluable guidance, insightful feedback and unwavering support throughout the writing of this dissertation. Your expertise has been instrumental in shaping this work. I extend my heartfelt thanks to my family, whose love and prayers have given me strength through this journey. To my friends, thank you for your constant motivation during the challenging moments. This dissertation would not have been possible without each of you, and I sincerely appreciate your support. iii List of Legal Instruments Constitution of Kenya, 2010. Data Protection Act (2019). Law of Succession Act, Cap 160, Laws of Kenya. The Law of Contract Act, Cap 23, Laws of Kenya. Stored Communications Act, U.S.C. Revised Uniform Fiduciary Access to Digital Act,2015. iv List of Cases Ajemian v. Yahoo Inc. (2013), Massachusetts Court of Appeals, United States. Re Estate of Ellsworth (2005), Michigan Court of Appeals, United States. Re Facebook Inc (2012), United States District Court, Northern District of California. Re Facebook, Inc., Consumer Privacy User Profile Litigation (2019), Northern District of California, United States. v List of Abbreviations CoK 2010 Constitution of Kenya 2010 DSP Data Service Providers IP Intellectual Property US/USA United States NFTs Non-fungible tokens TOS Terms of service GDPR General Data Protection Regulation vi Abstract In the era of digital dominance, estate planning faces a daunting challenge: adapting to the complexities of digital assets within existing legal frameworks. This study explores the urgent need to amend the Law of Succession Act to accommodate the realities of the digital age. The surge in digital assets, spanning cryptocurrencies, social media profiles, and cloud-stored documents, reshapes the landscape of inheritance, exposing gaps in current laws and leaving individuals vulnerable to legal ambiguities. Through a comprehensive examination drawing on legal, technological, and societal perspectives, this study identifies shortcomings in asset classification, valuation, and transfer within succession law. It proposes innovative reforms informed by comparative legal analysis and emerging practices, including redefined property definitions and streamlined probate processes facilitated by technological integration. Ethical considerations, such as privacy and data security, are also scrutinized. By confronting these challenges, the study advocates for a progressive approach to inheritance law, rooted in equity, transparency, and testamentary autonomy. Envisioning a future where estate planning seamlessly navigates the digital landscape, this study aims to ensure the equitable distribution of digital assets in the digital era. vii Table Contents Declaration ....................................................................................................................................... i Acknowledgments........................................................................................................................... ii List of Legal Instruments ............................................................................................................... iii List of Cases ................................................................................................................................... iv List of Abbreviations ...................................................................................................................... v Abstract .......................................................................................................................................... vi CHAPTER 1: INTRODUCTION ................................................................................................... 1 1.1 Background ............................................................................................................................... 1 1.2 Problem Statement .................................................................................................................... 3 1.3 Research Objectives .................................................................................................................. 3 1.3.1 General Objective ............................................................................................................... 3 1.3.2 Specific objectives.............................................................................................................. 4 1.4 Research Questions ................................................................................................................... 4 1.5 Justification ............................................................................................................................... 4 1.6 Hypothesis................................................................................................................................. 5 1.7 Theoretical Framework ............................................................................................................. 5 1.8 Literature Review...................................................................................................................... 6 1.8.1 Digital Assets and Inheritance Law ................................................................................... 6 1.8.2 The Online Persona ............................................................................................................ 7 1.8.3 Digital assets and Intestacy ................................................................................................ 8 1.9 Methodology ............................................................................................................................. 9 1.10 Research Limitations ............................................................................................................ 10 1.11 Chapter Breakdown .............................................................................................................. 10 1.12 Timeline ................................................................................................................................ 11 CHAPTER 2: CONCEPTUAL FRAMEWORK .......................................................................... 13 2.1 Introduction ............................................................................................................................. 13 2.2 Defining Digital Assets ........................................................................................................... 13 2.3 Digital Assets as Property ....................................................................................................... 14 2.4 Nature of Digital Assets .......................................................................................................... 16 2.5 Digital Assets and Intellectual Property ................................................................................. 18 viii 2.6 Conclusion .............................................................................................................................. 20 CHAPTER 3: VARIATIONS IN LEGAL FRAMEWORKS FOR DIGITAL ASSETS ............. 21 3.1 Introduction ............................................................................................................................. 21 3.2 Kenya’s Law of Succession Act ............................................................................................. 22 3.3 OVERVIEW OF USA LEGISLATION ................................................................................. 23 3.3.1 Stored Communications Act ................................................................................................ 24 3.3.2 Computer Fraud and Abuse (CFAA)............................................................................ 25 3.4 State Specific Approaches to Regulation of Digital Assets .................................................... 27 3.5 Conclusion .............................................................................................................................. 28 CHAPTER 4: DIGITAL SERVICE PROVIDERS AND DATA PROTECTION IN ESTATE PLANNING .................................................................................................................................. 30 4.1 Introduction ............................................................................................................................. 30 4.2 Digital Service Providers & Digital Estate Management ....................................................... 30 4.3 Conflicts Between DSP Requirements and Digital Asset Management ................................. 32 4.4 Kenya’s Data Protection Act and Digital Asset Management ................................................ 33 4.5 Proposed Strategies for Alignment ......................................................................................... 34 4.6 Conclusion .............................................................................................................................. 36 CHAPTER 5: RECOMMENDATIONS AND CONCLUSION .................................................. 37 5.1 Introduction ......................................................................................................................... 37 BIBLIOGRAPHY ......................................................................................................................... 40 1 CHAPTER 1: INTRODUCTION 1.1 Background As lives increasingly resonate through the digital realm, the question of how digital footprints are passed becomes a legal puzzle. As wealth, memories, and identities in the digital realm are stored online; from cryptocurrencies to social media profiles, there is a need to reconcile the Law of Succession Act with the complexities associated with digital assets and their rightful allocation upon an individual’s demise. The landscape of personal assets has undergone a radical transformation, largely driven by the digitization of wealth and the emergence of online identities. Traditionally, estate planning has focused on physical assets such as real estate, investments and personal belongings.1 However, the rise of digitalization through social media accounts and the increasing use of virtual currency has made estate planning more complex. Digital assets encompass a wide array of possessions such as social media accounts, cryptocurrency holdings, and cloud-stored documents to online businesses and intellectual property.2 As individuals increasingly amass substantial virtual wealth, a well-structured legal framework is necessary to regulate the succession and inheritance of digital assets. As Kenya witnesses an increase in internet indulgence and growth of digital entrepreneurship, individuals are amassing substantial virtual estates that lack clear guidelines for handling them after their death.3 This is brought about by the lack of provisions within existing legal frameworks to account for digital assets leading to potential nuances during succession. Platforms such as social media sites and email providers often have policies that dictate what happens to an account when the user passes away. These policies can vary widely, ranging from freezing the account to deleting it entirely. This can create challenges for the deceased loved ones who may want access to their online presence for various reasons such as preserving 1Section 2, Law of Succession Act, (1982). 2 Kutler N, ‘Protecting Your Online You: A New Approach to Handling Your Online Persona after death’, University of California, 2019,5. 3 Gatuyu, “Managing Digital Assets in Kenya: Regulatory Framework, Practices and Future Prospects”< https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2693072> November 22, 2015. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2693072 2 memories or closing accounts tied to financial or personal information.4 Furthermore, the right to be forgotten becomes particularly relevant. It allows individuals to have personal data removed from the internet.5 In line with the Law of Succession Act, incorporating the right in is essential for managing digital estates, as the current legislation lacks provisions for digital assets. Amending the Act to include this right and establishing a regulatory authority would help protect the privacy of deceased individuals and ensure proper handling of their digital legacies. As of 2019, mobile operators handed over Ksh. 500 million in unclaimed mobile money to the government, highlighting that the owners were not found or were presumed dead.6 With over 90% of Kenyans using mobile phone networks and transacting billions, the lack of regulations leaves many assets, including mobile money, unclaimed or inaccessible by heirs.7 While M- PESA has implemented procedures for next-of-kin claims, there is no specific law governing the inheritance of digital assets such as cryptocurrencies, online businesses, or digital property like Bitcoin.8 The decentralized nature of these assets complicates succession as courts cannot enforce inheritance over anonymous, virtual accounts. Chief Justice David Maraga acknowledged the importance of addressing this issue, but the legal vacuum persists, posing challenges in cases involving digital inheritance, especially where no will is present.9 This study aims to critically assess the current legal framework, specifically the Law of Succession Act in Kenya, in addressing the complex challenges surrounding the inheritance of digital assets. By exploring the intersection of technology, law, and societal changes, it also 4 Kutler N, ‘Protecting Your Online You: A New Approach to Handling Your Online Persona after death’, University of California, 2019,5. 5 Mokuri E,’ Data Protection in Kenya: The case of the Right to be Forgotten’Published LLB Dissertation, Strathmore Law School, Nairobi, 2016,25. 6 Kamau Muthoni, No law for inheritance of digital assets or property, Judiciary reveals, 2018, https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or- propertyjudiciary-reveals on 16 March 2019. 7 Kamau Muthoni, No law for inheritance of digital assets or property, Judiciary reveals, 2018, https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or- propertyjudiciary-reveals on 16 March 2019. 8 Ignacio Mas and Dan Radcliffe, ‘Mobile money go viral in Kenya’32 Capco Institute’s Journal of Financial Transformation, 2011. 9 Kamau Muthoni, No law for inheritance of digital assets or property, Judiciary reveals, 2018, https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or- propertyjudiciary-reveals on 25 May 2021. https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals 3 seeks to draw lessons from the United States and identify best practices in legal frameworks governing digital asset inheritance. Moreover, it seeks to propose practical amendments to ensure a seamless and equitable succession process for both tangible and digital assets. In an era dominated by virtual wealth accumulation, the paper’s significance lies in its potential to shape a modern and comprehensive approach to estate planning, ultimately contributing to a more inclusive and equitable transfer of wealth in the digital age. 1.2 Problem Statement Section 3 of the Law of Succession Act provides definitions and terms related to property inheritance but lacks a specific definition or provision for digital assets. This creates a gap in the legal framework, especially considering the rapid growth of digital assets, such as online accounts, cryptocurrencies, and intellectual property in the digital space. While the Act addresses traditional movable and immovable assets, it does not account for the unique nature of digital assets, which can hold both significant economic and sentimental value. As a result, without clear legal guidance, issues such as disputes over digital assets, access to online accounts, and the distribution of virtual property remain unresolved. This legal gap raises concerns about privacy, access to credentials, and proper valuation of digital assets during estate distribution, leading to delays, potential conflicts, and the risk of assets being overlooked in the succession process. 1.3 Research Objectives 1.3.1 General Objective The aim of this paper is to critically assess the current legal framework, specifically the Law of Succession Act in Kenya, in addressing the complex challenges surrounding the inheritance of digital assets. 4 1.3.2 Specific objectives a. To conduct a comprehensive review of the legal framework governing the inheritance of social media accounts, cryptocurrencies, and digital files in Kenya, identifying key legal considerations and challenges. b. To draw lessons from the United States and identify best practices in legal frameworks governing digital asset inheritance. c. To propose strategies and amendments to streamline the inheritance process within Kenya’s legal framework. 1.4 Research Questions a. What legal considerations govern the inheritance of social media accounts, cryptocurrencies and digital files in Kenya? b. What variations exist in the USA to address the inclusion and management of digital assets in estate planning? c. In what ways can advancements in technology and legal innovation be harnessed to facilitate the smooth transition of digital legacies in Kenya’s estate planning? 1.5 Justification The digitization of assets has revolutionized estate planning practices, presenting unprecedented challenges that traditional legal frameworks, such as the Law of Succession Act, are ill-equipped to address. The Act is inadequate for the digital age, as it lacks provisions for the recognition, access, management, privacy, and valuation of digital assets. Moreover, it fails to address emerging issues like the right to be forgotten, leaving digital estates poorly protected and managed within the current estate planning processes. In Kenya, where the digital economy is rapidly expanding, there is a pressing need to adapt existing laws to adequately account for digital assets like cryptocurrencies, social media accounts, and cloud-stored documents. However, the legal treatment of these assets remains unclear, leading to uncertainties and potential disputes in estate administration. This paper is 5 crucial as it seeks to fill this gap in knowledge and provide practical solutions to navigate the complexities of digital asset succession. By examining the challenges presented by digital assets under the Law of Succession Act and proposing necessary amendments, this research aims to ensure the equitable treatment and effective management of digital estates in Kenya. Furthermore, this paper will have broader implications for the legal and financial sectors, shaping future policies and practices surrounding estate planning in the digital age. 1.6 Hypothesis In revolutionizing Kenya's Law of Succession Act to embrace the digital era, a more agile and equitable estate planning framework emerges, seamlessly integrating tangible and digital assets. This transformation not only safeguards post-mortem privacy but positions Kenya as part of the pioneer in modern legal landscapes, ensuring a swift and just inheritance process for the wealth of today's interconnected world. 1.7 Theoretical Framework Legal Realism, by Oliver Holmes argues that the law should be grounded in the realities of the world and how it affects society rather than relying on rigid principles and doctrines. It is relevant when considering the limitations of the current Law of Succession Act in Kenya as it was crafted before the emergence of digital assets such as cryptocurrencies and online accounts. Realism emphasizes that the law must evolve to meet the needs of a changing society and hence the integration of digital assets in estate planning remains effective in the legal framework in today’s technological world. Moreover, legal realism approaches advocate for the amendments in the Law of Succession Act by ensuring that administrators and beneficiaries can access and manage digital estates, protect the privacy of digital information and appreciating the worth of digital assets. This theory ensures that the challenges posed by digital assets in succession are resolved promoting fair and equitable distribution of digital assets. 6 1.8 Literature Review 1.8.1 Digital Assets and Inheritance Law The article "Digital assets and inheritance law: How to create fundamental principles of digital succession system?" by Paweł Szwajdler addresses the pressing need for fundamental principles to regulate the succession of digital assets in the context of inheritance law. Szwajdler aims to bridge the gap between theoretical considerations and practical implications by offering a comprehensive overview of the complexities of digital assets in estate planning and inheritance law.10 He centers his article around the challenges faced due to lack of applicable legal regulations in the field of digital succession and the need to develop a legal theory of digital succession to accommodate the changing landscape of estate planning in the digital age.11 Szwajdler's article presents compelling arguments regarding the necessity of establishing fundamental principles for the succession of digital assets. Furthermore, it provides practical proposals for legislators, consumers, digital service providers, and the judiciary to navigate the complexities of digital succession and adapt their practices to align with the evolving nature of digital assets.12 The article delves into examining the theoretical and practical aspects surrounding digital assets in inheritance law, offering valuable insights into the development of essential principles for digital asset succession.13 While lacking case studies, the article's key findings emphasize the urgency of addressing challenges in this domain, providing 10 Szwajdler P, “Digital assets and inheritance law: How to create fundamental principles of digital succession system?” International Journal of Law and Information Technology,2023,1, on 22nd August 2023. 11 Szwajdler P, “Digital assets and inheritance law: How to create fundamental principles of digital succession system?” International Journal of Law and Information Technology,2023,2, on 22nd August 2023. 12 Szwajdler P, “Digital assets and inheritance law: How to create fundamental principles of digital succession system?” International Journal of Law and Information Technology,2023,17, on 22nd August 2023. 13 Szwajdler P, “Digital assets and inheritance law: How to create fundamental principles of digital succession system?” International Journal of Law and Information Technology,2023,13, on 22nd August 2023. https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext 7 actionable insights for adapting legal frameworks to accommodate the complexities of digital assets in estate planning.14 The article is relevant to this dissertation as it focuses on establishing fundamental principles for digital succession, aligning with the imperative to adapt legal frameworks to address specific challenges arising from digital assets in estate planning. 1.8.2 The Online Persona Noam Kutler's article, "Protecting Your Online You: A New Approach to Handling Your Online Persona After Death," seeks to delve into the complexities of digital assets within estate planning. It revolves around adapting traditional succession laws to navigate the complexities of online personas, emphasizing the ethical and legal considerations surrounding the posthumous control and digital legacies.15 Kutler constructs compelling arguments, advocating for the recognition of the inherent value of one's online persona and the need to incorporate digital assets into estate planning. He proposes an approach to managing digital assets within the probate process, backed by a comprehensive legal and analytical framework.16 The article underpins the limitations of contract law in addressing posthumous control of digital assets, asserting the necessity for legislative amendments to safeguard online personas after death.17 Employing a legal and analytical approach, Kutler draws on existing probate law, court rulings, and legal frameworks to substantiate his proposed paradigm shift. Despite its strengths in offering a thorough legal analysis and structured argumentation, the article may be limited by its focus primarily on legal aspects, with limited exploration of broader societal and 14 Szwajdler P, “Digital assets and inheritance law: How to create fundamental principles of digital succession system?” International Journal of Law and Information Technology,2023,24, on 22nd August 2023. 15 Kutler N, “Protecting your online you; A new approach of handling your online persona after death” , Berkeley Technology Law Journal, 2011,1643 2011. 16 Kutler N, “Protecting your online you; A new approach of handling your online persona after death” , Berkeley Technology Law Journal, 2011,1654 2011. 17 Kutler N, “Protecting your online you; A new approach of handling your online persona after death” , Berkeley Technology Law Journal, 2011,1650 2011. https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://academic.oup.com/ijlit/article-abstract/31/2/144/7248529?redirectedFrom=fulltext https://www.jstor.org/stable/24118668 https://www.jstor.org/stable/24118668 https://www.jstor.org/stable/24118668 8 technological implications. Moreover, while legislative amendments are discussed, practical challenges in their implementation are not extensively addressed. The key findings underscore the imperative for legislative amendments to accommodate digital assets in the probate process, emphasizing the inclusion of digital assets in estate planning discussions.18 Kutler's article is highly relevant to the broader discussion on estate planning in the digital age, aligning with adapting legal frameworks to keep pace with technological advancements. 1.8.3 Digital assets and Intestacy Laura McCarthy's article "Digital Assets and Intestacy" focuses on the challenges posed by digital assets in the context of intestacy and estate planning. It aims to shed light on the complexities arising from the absence of clear legislation regarding digital assets and intestacy, advocating for the adaptation of laws to accommodate the digital age.19 McCarthy contends that the widespread existence of digital assets poses a notable challenge to estate planning in the contemporary digital era, primarily because of the absence of specific laws governing the succession of such assets.20 The article emphasizes the pressing need to modify laws related to intestacy to effectively distribute digital assets among potential beneficiaries.21 Additionally, it argues on how digital assets are continuously evolving, influencing the landscape of modern estate planning and the distribution of digital property to heirs.22 It also highlights the 18 Kutler N, “Protecting your online you; A new approach of handling your online persona after death” , Berkeley Technology Law Journal, 2011,1664 2011. 19 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,382, 2015. 20 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,384, 2015. 21 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,384, 2015. 22 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,388, 2015. https://www.jstor.org/stable/24118668 https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= 9 complexities surrounding copyright ownership of digital assets and the implications for intestacy laws.23 A legal analysis approach is used to draw on existing laws, regulations, and scholarly literature to examine the challenges and implications of digital assets in the context of intestacy.24 McCarthy impressively explores the various types of digital assets, including photographs, videos, emails, financial records, and intellectual property, providing a nuanced understanding of the scope of digital assets in estate planning.25 However, the article could benefit more with an in-depth analysis of potential solutions or best practices for integrating digital assets into intestacy laws. The article's insights and arguments contribute significantly to the broader discussion in this dissertation on estate planning in the digital age and the need to accommodate digital assets within succession laws. 1.9 Methodology This study will employ a doctrinal legal research approach, with a primary focus on the analysis of legal principles and doctrines relevant to estate planning in the digital age. Data will be gathered from primary legal sources, including statutes, case law, and legislative documents, as well as secondary sources such as legal commentaries, scholarly articles, and textbooks. The methodology will involve an examination of the Law of Succession Act and be supplemented by an in-depth review of international legal frameworks and comparative analysis where applicable. Emphasis will be placed on scrutinizing issues pertaining to inheritance, property rights, privacy, and contract law, particularly as they relate to digital assets. 23 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,387, 2015. 24 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,389, 2015. 25 McCarthy L,” Digital Assets and Intestacy,” Boston University Journal of Science and technology Law,2015,405, 2015. https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= https://heinonline.org.ezproxy.library.strathmore.edu/HOL/Page?handle=hein.journals/jstl21&id=402&collection=journals&index= 10 1.10 Research Limitations In conducting this research, several limitations are anticipated that may affect the scope and depth of the study. Firstly, constraints on data availability may arise due to the accessibility and comprehensiveness of legal sources related to digital asset inheritance laws in Kenya.. The rapidly evolving nature of digital assets and the lack of legislation in this area mean that relevant legal sources, such as updated statutes, case law, and regulatory guidance, may be scarce.. Additionally, the lack of specific legal precedents or detailed case studies involving digital asset inheritance in Kenya could limit the ability to draw definitive conclusions or make a fully nuanced analysis of the challenges on digital assets into existing legal frameworks. 1.11 Chapter Breakdown Chapter 1: Introduction It will act as an introduction to this study, laying the ground for the following chapters. It will outline key components such as research questions, objectives, and the theoretical framework to be utilized. The aim of this chapter is to establish the context and scope of the research, providing readers with a clear understanding of its purpose. Additionally, it will serve as a guide for interpreting the findings of subsequent chapters, offering readers a roadmap to navigate the progression of the study. Chapter 2: Conceptual Framework of Digital Assets in Kenya It defines and categorizes various digital assets, such as cryptocurrencies, digital files, social media accounts, and online businesses, and examines the treatment of digital assets as property and how they overlap with Intellectual property rights. It highlights the unique nature of digital assets and the challenges it creates in succession planning. Chapter 3: Variations in Treatment of Digital Assets in Estate Planning Laws Explores variations in estate planning laws, particularly in the USA, regarding digital asset treatment. It examines different state approaches in recognizing and regulating digital assets, including definitions, access requirements, and transfer procedures. By comparing these laws, the chapter identifies best practices to inform Kenyan estate planning law adaptation. 11 Chapter 4: Data Service Providers and Data Protection in Estate Planning This chapter looks into the role of digital service providers (DSP)in managing digital assets after death, focusing on their policies for account access, data transfer, and deletion. It examines conflicts between DSP terms of service and legal requirements for estate planning. Additionally, the chapter evaluates Kenya's Data Protection Act regarding the privacy and management of digital estates and proposes strategies to align DSP practices and data protection regulations with effective estate planning frameworks, incorporating international best practices. Chapter 5: Recommendations and Conclusion This chapter will be the conclusion exploring how technology and legal innovation can facilitate smooth digital asset transition in Kenyan estate planning. Investigating technologies such as smart contracts and legal strategies, it highlights potential benefits and challenges. It will thereby conclude the discussion by restating the main claims of the paper and provide recommendations as to how best the Kenyan jurisdiction should address this issue. 1.12 Timeline 1. Proposal Submission: March 2024 2. Conceptual Framework of Digital Assets in Kenya: October 2024 3. Variations in Treatment of Digital Assets in Estate Planning Laws November 2024 4. Data Service Providers and Data Protection in Estate Planning December 2024 5. Recommendations and Conclusion January 2025 12 6. Submission of dissertation: March 2025 13 CHAPTER 2: CONCEPTUAL FRAMEWORK 2.1 Introduction Digital assets are reshaping how wealth is defined and inherited. This chapter aims to define and categorize different types of digital assets. It examines the treatment of digital assets as property and looks into their overlap with intellectual property rights. It highlights how the distinctive nature of digital assets, such as intangibility and reliance on technology, can pose challenges for succession planning and emphasizes the need for clear legal guidelines to manage and inherit them effectively. 2.2 Defining Digital Assets The concept of digital assets has gained considerable attention due to the digitalization of the economy, leading to the emergence of new forms of wealth circulation.26 Digital assets are defined as items of economic value that exist in electronic form and can be owned, transferred, or managed27, including cryptocurrencies, tokens, domain names, social media accounts, digital files, virtual gaming property, and other forms of data. A crucial feature of digital assets is their "binary" form of existence which is self-contained, uniquely identifiable and holds value.28 Binary data differentiates digital assets from other types of property, as they exist in a digital environment composed of numerical values (0s and 1s) and are stored on computer systems.29 Access to this information is possible through a computer, storage drive, smartphone, internet, or server, often facilitated by a third party such as an internet service provider.30 A digital assets value is linked to the data it contains; the data gives the asset its worth whether financial or 26 Hopkins J, ‘Afterlife in the Cloud: Managing a Digital Estate’ 5 Hastings Science and Technology Law Journal 2013, 221. 27 Toygar A,`A New Asset Type: Digital Asset’ 22 Journal of International Technology and Information Management 4, 2013,113. 28 Kharitonova Y,` Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,3 February 2021. 29 Agarwal S,’A Comprehensive Study on Scope and Challenges in Digital Inheritance’ 7 International Journal of Scientific Research in Computer Science Engineering and Information Technology,2,2021,3. 30 Agarwal S,’A Comprehensive Study on Scope and Challenges in Digital Inheritance’ 7 International Journal of Scientific Research in Computer Science Engineering and Information Technology,2,2021,3. https://scholarworks.lib.csusb.edu/jitim https://scholarworks.lib.csusb.edu/jitim https://www.researchgate.net/publication/349678915_Digital_assets_and_digital_Inheritance 14 sentimental.31 For example, a Bitcoin’s value is derived from its scarcity and utility within the blockchain system, while a sentimental photograph stored on a cloud server derives its value from the personal meaning it holds.32 Despite their intangibility, digital assets hold a substantial role in the modern and financial realms which are now integral to economic transactions and social interactions. Their reliance on third party platforms for storage and access brings out the complexity in determining ownership, control and transferability and hence raises important questions about their alignment with traditional property concepts and whether they meet the criteria for property. 2.3 Digital Assets as Property Considering the rapid growth in economic importance and the peculiar features of digital assets, some believe they should be treated as property. Property has conventionally formed part of the very foundation of the legal infrastructure and has influenced economic and social order over centuries.33 Property is not defined by what we own, rather it is defined as a bundle of rights in things around us.34 The characteristic of ownership involves the right to use, transfer, exclude and control.35 These assets exhibit property-like characteristics, such as exclusivity, control, and the potential for transfer, yet their classification as property remains a contentious issue.36 The exclusivity of digital assets is a key feature that aligns digital assets as property. This is seen as digital assets are often protected by credentials such as passwords and encryption keys that ensure that only authorized individuals can access.37 An example is cryptocurrencies which are controlled by private keys which grants owners both security and control over the 31 Heather C, ‘The ‘New’ New Property: Dealing with Digital Assets on Death’ Queen’s University Belfast School of Law, 12, 2012, 4. 32 Perez D, Digital Succession:Addressing the Disposition of Juan’s Online Digital Assets Upon His Death,’Philipppine Law Journal 91,2018,388-415. 33 Wyczik J, ‘Ownership in the 21st century: property law of digital assets’ Information & Communications Technology Law, 2024, 2 https://doi.org/10.1080/13600834.2024.2408917 on 9 December 2024. 34 Kariuki F,’Property Law’ Strathmore University Press, Nairobi,2016, 2. 35 Kariuki F,’Property Law’ Strathmore University Press, Nairobi,2016, 7. 36 Carpenter A, Katyal K, and Riley R, ‘In Defense of Property’ 118 Yale LJ 1022, 2008. 37 Wyczik J, ‘Ownership in the 21st century: property law of digital assets’ Information & Communications Technology Law, 2024, 2 https://doi.org/10.1080/13600834.2024.2408917 on 9 December 2024. https://doi.org/10.1080/13600834.2024.2408917 https://doi.org/10.1080/13600834.2024.2408917 15 asset.38 Traditionally, one can own property as a right,39 however, digital assets diverge from this due to their reliance on licensing agreements and contractual terms. Social media accounts are governed by terms of service that limit ownership rights.40 This contractual model contrasts with traditional property rights, where ownership includes the right to transfer or devise the asset upon death. Moreover, the nature of digital assets complicates their classification within the common law distinction between choses in possession which are tangible property and choses in action which are intangible rights enforceable by legal action.41 Cryptocurrencies resist that binary categorization as they are neither things, in any conventional sense, nor familiar contractual rights. 42 Moreover, Bitcoin, if anything, takes value from its perceived scarcity, and it does most of its running on blockchain.43While the crypto assets are bereft of any tangible form and contractual basis, several jurisdictions recognize them as intangible property.44 For example, courts in several jurisdictions recognize cryptocurrencies as intangible property since their history can be verifiable through distributed ledgers.45 At the same time, these assets share a coincidence with intellectual property rights. However, often they lack traceable creators or owners which raises several legal uncertainties.46 Legally, digital assets challenge the framework of property rights. In Kenya the Law of Succession Act does not clearly define digital assets as to whether they amount to property resulting in ambiguity in their management and transfer upon death.47 In contrast, the US Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA),48provides a framework that recognizes digital assets as property. It describes digital assets as electronic 38 Millar J,’Trust, property and social capital in the digital economy,’ Cambridge University Press, 2018,43. 39 Kariuki F,’Property Law’ Strathmore University Press, Nairobi,2016, 2. 40 Kutler N, “Protecting your online you; A new approach of handling your online persona after death” , Berkeley Technology Law Journal, 2011,1664 2011. 41 Bell A, ‘A theory of property’ 90 Cornell Law Review 2004, 531. 42 Lee L, ‘Examining the Legal Status of Digital Assets as Property: A Comparative Analysis of Jurisdictional Approaches’ SSRN, 2024, 4 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4807135 on 9 December 2024. 43 Woxholth J, ‘Competing claims to crypto-assets’ 28 Uniform Law Review 2, 2023, 231. 44 Wyczik J, ‘Ownership in the 21st century: property law of digital assets’4. 45 Garcia-Teruel M, ‘The digital tokenization of property rights. A comparative perspective’ 41 Computer Law & Security Review, 2021,4. 46 Lee L, ‘Examining the Legal Status of Digital Assets as Property: A Comparative Analysis of Jurisdictional Approaches’5. 47 Section 3, Law of Succession Act, (Chapter 160 of 2012). 48 Revised Uniform Fiduciary Access to Digital Act (2015). https://www.jstor.org/stable/24118668 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4807135 16 records that individuals have ownership rights or interests in.49 Clearly, to integrate digital assets into estate planning, legal systems must reconcile these challenges by balancing contractual and property rights, ensuring they are adequately protected and transferable in the digital age. A universal definition of digital assets, combined with a legal framework that acknowledges their property-like nature, will not only streamline their management but also enable efficient succession planning, ensuring digital assets are adequately protected, transferable, and capable of contributing to economic and social systems in the digital age. 2.4 Nature of Digital Assets Digital assets fall into a wide array of categories which range from financial instruments to virtual entertainment and social connections.50 Financial instruments include platforms like PayPal, banks, and credit unions that manage money or facilitate online transactions.51 Ownership of the funds in these accounts may appear to be very straightforward however challenges arise when it comes to granting beneficiaries access after the account holder’s death.52 Additional concerns may arise due to digital fraud and the security of online financial assets in the hands of beneficiaries. Without clear laws that secure transfer systems requiring strong authentication and verification processes, beneficiaries are then at risk of unauthorized access to accounts.53 This may lead to phishing attacks targeting families resulting in the loss of funds. Moreover, share trading is another significant category.54 It involves ownership and safe transfer of investors' value of stocks which are held by the Central Depository and Settlement Corporation accounts regulated by the Central Bank of Kenya.55 The accounts ensure secure 49 Section 2, Revised Uniform Fiduciary Access to Digital Act (2015). 50 Kharitonova Y,`Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,3 51 Magenge R,Mutuku M,`Beyond Land and Cash: Exploring Africa’s Digital Inheritance Regime’ Medium, 2024,3 on 12 August 2024. 52 Kristina J,`Estate Planning for Digital Assets’ Shumaker, Loop&Kendrick, LLP,2014,2. 53Odeyo E, ‘Exploring financial inclusion in Kenya through cryptocurrencies: a case for a regulatory framework ’unpublished, Strathmore Law School, Nairobi, 2021. 54 Magenge R,Mutuku M,`Beyond Land and Cash: Exploring Africa’s Digital Inheritance Regime’ Medium, 2024,3 on 12 August 2024. 55 https://www.cdsckenya.com/ https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 mailto:https://www.cdsckenya.com/ 17 record keeping and transactions, but succession planning is blurred by platform specific terms. Similarly, SportPesa which is known for online betting, holds digital wallets where the users accumulate balances that possess financial value.56 This is kind of similar to shares or CDSC accounts in which these assets are tied to their financial value and their transfer may be complicated due to privacy laws and platform specific terms.57 Social media platforms such as YouTube, Instagram, X, among others hold personal data and social capital.58 The profiles are valuable in a non-monetary sense but are licensed to users. Transferring control over these profiles may be restricted due to lack of the legal right to do so.59Moreover, content holders like Spotify and Amazon, ownership is constrained by licensing agreements. Despite purchasing digital books or music, users do not own these assets.60 Instead, platforms like Amazon clarify that their content is licensed and non- transferable.61 This creates a challenge for estate planning, as beneficiaries cannot inherit these collections of digital content in the same way that they could with physical media like books. In addition, content creation, blogs and podcasts generate intellectual property that may have value. Whether these assets can be passed on depends on the platform's terms of service and whether intellectual property rights are retained by the creator.62 Virtual currency, such as cryptocurrency, is not subject to licensing agreements and can be passed on like traditional financial assets.63To access these posthumously, requires that the private keys needed for access must be securely passed to beneficiaries; without them, the cryptocurrency could be lost forever.64 Similarly, cloud storage platforms like Dropbox and 56 https://www.ke.sportpesa.com/en/sports-betting/football-1/ 57 Kristina J,`Estate Planning for Digital Assets’ Shumaker, Loop&Kendrick, LLP,2014,2 Spring 2014. 58 Kutler N, “Protecting your online you; A new approach of handling your online persona after death” , Berkeley Technology Law Journal, 2011,1664 ,2. 59 Kutler N, ‘Protecting Your Online You: A New Approach to Handling Your Online Persona after death’, University of California, 2019,5. 60 Magenge R,Mutuku M,`Beyond Land and Cash: Exploring Africa’s Digital Inheritance Regime’ Medium, 2024,3 on 12 August 2024. 61 Muigua K,`Is Kenya Prepared to Embrace Digital Dispute Resolution’ Africa The Lawyer,2023,2, accessed on 9 September 2023. 62 Kutler N, ‘Protecting Your Online You: A New Approach to Handling Your Online Persona after death’, University of California, 2019,5. 63 Natalie M, ’Property Interests in Digital Assets: the rise of digital feudalism’, 38, 10 February 2017, 1101. 64 Natalie M, ’Property Interests in Digital Assets: the rise of digital feudalism’, 38, 10 February 2017, 1101. https://www.ke.sportpesa.com/en/sports-betting/football-1/ https://www.shumaker.com/Templates/media/files/pdf/news/publications/-insights-estate-planning.pdf https://www.shumaker.com/Templates/media/files/pdf/news/publications/-insights-estate-planning.pdf https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 18 iCloud, which store personal data such as documents and photos, operate under licensing agreements, complicating posthumous access.65 Without proper planning, valuable or sentimental data stored on these platforms may become inaccessible to heirs after the owner's demise. The varied characteristics of digital assets creates complexities in estate planning particularly concerning ownership and access. Without proper legal measures, beneficiaries may struggle to inherit or manage these assets after the owner’s demise. 2.5 Digital Assets and Intellectual Property The intersection of digital assets and intellectual property(IP) creates unique considerations in succession planning particularly when it comes to ownership and rights management.66 One major challenge within succession law is determining whether digital assets should be classified as intellectual property which would impose certain restrictions on their inheritance, or whether they should be treated as freely transferable assets that can be bequeathed without limitations.67 Digital assets such as cryptocurrencies, non-fungible tokens (NFTs) and digital art, often have an aspect of intellectual creations embodied in them as they are produced through software and blockchain technology.68 For example, cryptocurrencies are created using computer programs and are meant to be shared widely. They usually operate under open- source licenses, which means that no single entity has full control over them.69 Consequently, succession planning for these assets requires an understanding of how digital assets fit into the IP landscape, especially when it comes to rights management and transfer after death. 65 Magenge R,Mutuku M,`Beyond Land and Cash:Exploring Africa’s Digital Inheritance Regime’ Medium, 2024,3 on 12 August 2024. 66 Kharitonova Y,`Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,5 February 2021. 67 Kharitonova Y,`Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,5 February 2021. 68 Akhilesh G,` What are Digital Assets?’ The Balance,2021,2on 23 November 2023. 69 Kitili J, `Digital Assets Unveiled: Deciphering Intellectual Property Rights and Privacy Considerations Centre for Intellectual Property and Information Technology,2024,2. https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 https://pollicy.medium.com/beyond-land-cash-exploring-africas-digital-inheritance-regime-a3703dd2a8b8 https://www.researchgate.net/publication/349678915_Digital_assets_and_digital_Inheritance https://www.researchgate.net/publication/349678915_Digital_assets_and_digital_Inheritance https://www.thebalancemoney.com/what-are-digital-assets-5207790 https://www.thebalancemoney.com/what-are-digital-assets-5207790 19 Digital assets can be divided into those that can be protected by IP laws and those that exist purely as digital properties each having a distinct approach in succession planning.70 Intellectual Property Rights safeguard interests of creators by having legal frameworks such as copyright, trademarks and patents that protect original works from infringement.71 Due to the risks of unauthorized distribution and digital piracy, estate planners should incorporate protections in wills and trusts to help creators bequeath their digital assets while retaining control.72 This makes it essential to have clear instructions on how these assets are to be managed and distributed ensuring that IP retains its value for future generations. The integration of blockchain technology into digital asset management adds a significant layer of complexity for succession planning in Kenya.73 Blockchain not only facilitates the creation, storage, and transfer of digital assets but also provides a transparent and immutable record of transactions, enhancing ownership verification.74 This provenance tracking is crucial for establishing the authenticity of digital items, such as NFTs and digital art, allowing creators to control the distribution and usage of their works even after their death. However, this reliance on blockchain introduces new legal considerations regarding the rights associated with digital ownership versus traditional property forms.75 Unlike how traditional property can be transferred through legal documents such as wills, digital assets often depend on private keys and digital wallets.76 These technical requirements need appropriate planning to ensure that their heirs receive the necessary credentials to access and manage these assets after the owner’s assets. 70 Kharitonova Y,`Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,5 February 2021. 71 Ray ‘Til Death Do us Part: A proposal for handling Digital Assets after Death’, 47 Real Property, Trust and Estate Law Journal,3,2013,599. 72 Kharitonova Y, `Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,5 February 2021. 73 Deloitte,’ Blockchain and Digital Assets’ accessed on 24 August 2024. 74 Deloitte,’ Blockchain and Digital Assets’ accessed on 24 August 2024. 75 Kitili J, `Digital Assets Unveiled: Deciphering Intellectual Property Rights and Privacy Considerations Centre for Intellectual Property and Information Technology,2024,2. 76 Kharitonova Y, `Digital Assets and Digital Inheritance’ Lomonosov Moscow State University, 2021,5 February 2021. https://www.researchgate.net/publication/349678915_Digital_assets_and_digital_Inheritance https://www.researchgate.net/publication/349678915_Digital_assets_and_digital_Inheritance https://www2.deloitte.com/us/en/pages/about-deloitte/solutions/blockchain-digital-assets-definition.html https://www2.deloitte.com/us/en/pages/about-deloitte/solutions/blockchain-digital-assets-definition.html https://www2.deloitte.com/us/en/pages/about-deloitte/solutions/blockchain-digital-assets-definition.html https://www2.deloitte.com/us/en/pages/about-deloitte/solutions/blockchain-digital-assets-definition.html https://www.researchgate.net/publication/349678915_Digital_assets_and_digital_Inheritance 20 Succession planning for digital assets must address its relationship with IP while ensuring heirs can access their assets. Balancing creator rights with secure credential transfer helps retain value for future generations. This ensures seamless management and inheritance of digital wealth. 2.6 Conclusion The conflict in defining digital assets highlights the difficulty in classification, ownership and transferability especially in succession planning. While some jurisdictions have begun recognizing digital assets as property, Kenya’s legal framework remains underdeveloped, creating gaps in estate planning. A unified legal approach that balances contractual rights, property rights, and technological nuances is crucial to ensure digital assets are effectively managed, protected, and inherited, aligning with the evolving economic and social landscape. 21 CHAPTER 3: VARIATIONS IN LEGAL FRAMEWORKS FOR DIGITAL ASSETS 3.1 Introduction In today’s digital age, where personal and financial activities increasingly take place online, the question of how digital assets are inherited has become more pressing.77 In Kenya, this issue remains largely unaddressed by existing laws. The Law of Succession Act does not specifically address the inheritance of digital assets or personal data, leaving a significant gap in the legal framework.78 Currently, it is presumed that digital assets in intestate matters would pass to the next of kin under the Law of Succession Act.79 However, this assumption is complicated by differing terms and conditions imposed by service providers, which limit access to a deceased person’s digital data. For example, mobile money services like Mpesa requires the claimant to provide several documents such as statutory declaration and grant of Probate for inspection and approval which is a lengthy process.80 A newspaper article from 2018 illustrated this gap by indicating the consequences of lack of laws on digital inheritance in Kenya in cases such as the 500 million in unclaimed mobile money.81 This absence of clear regulations not only limits access to valuable digital property but also raises issues for individuals and families reliant on digital assets as sources of income.82 In the U.S., the rise of digital assets has reshaped estate planning, with federal laws such as the Stored Communications Act (SCA) and the Computer Fraud and Abuse Act (CFAA) playing major roles since the 1980s as shall be discussed in the next chapter. This chapter examines Law of Succession Act in Kenya, outlines its limitations concerning digital assets, and draws insights from the approaches taken in the U.S. 77 Banta N, ‘Property interests in digital assets: The rise of digital feudalism’ 38 Cardozo L. Rev. 4, 2016, 1099. 78 Labhuram A, ‘Inheritance of personal data: the future of succession in the metaverse’, KICTANet, 2022, Inheritance of personal data: the future of succession in the metaverse | KICTANet Think Tank on 25 November 2025. 79 Part V, Law of Succession Act, (Chapter 160 of 2012). 80 M-PESA Next of Kin Claim on 2 February 2025. 81 Muthoni K, ‘No law for Inheritance of digital assets or property, Judiciary reveals’ The Standard, Jun 18, 2018 No law for inheritance of digital assets or property, Judiciary reveals on 25 November 2024. 82 Labhuram A, ‘Inheritance of personal data: the future of succession in the metaverse’ 1. https://www.kictanet.or.ke/inheritance-of-personal-data-the-future-of-succession-in-the-metaverse/#:~:text=Instead%20the%20succession%20of%20digital%20assets%20is%20presumed,as%20determined%20by%20the%20Law%20of%20Succession%20Act. https://www.safaricom.co.ke/main-mpesa/m-pesa-for-you/m-pesa-legal/next-of-kin-claim https://www.standardmedia.co.ke/business/sci-tech/article/2001284484/legal-gap-robs-kenyans-of-billions-in-digital-wealth#google_vignette 22 3.2 Kenya’s Law of Succession Act The Law of Succession Act was designed to offer a framework for the administration and distribution of a deceased person’s estate.83Section 3 defines `estate’ as the free property of a deceased person; this definition, while it seems to be comprehensive, is deeply rooted in a pre- digital era, focusing on traditional forms of property such as land and physical goods.84 The Act’s scope fails to accommodate the rapid evolution of wealth storage and management particularly the rise of digital assets.85 The omission is glaring, given the increasing prevalence of digital wealth in modern estates. A key flaw in the Act is its narrow interpretation of `property’. Currently, wealth is no longer confined to the physical and tangible assets since digital currency, online business and intellectual property stored in cloud based accounts form a substantial part of individuals’ estates.86 Yet, Section 3 of the Act remains silent on these forms of property providing no guidance on how they should be managed and distributed.87 Absent statutory provisions, executors and heirs are left to navigate complex digital systems with little to no legal recourse. This failure to recognize and address digital assets leaves a substantial portion of an estate potentially lost or inaccessible, depriving heirs of their rightful inheritance.88 Even more problematic is the intersection between digital assets and the private contracts that often govern them.89 For instance, social media accounts are usually bound by strict service agreements that dictate access and transferability. Under these agreements, accounts may be deleted, frozen, or inaccessible after death, further complicating inheritance.90 For instance, 83Section 2, Law of Succession Act, (Chapter 160 of 2012). 84Law of Succession Act (Cap 160), Laws of Kenya. 85 Section 2, Law of Succession Act, (Chapter 160 of 2012). 86 Muigua K,`Is Kenya Prepared to Embrace Digital Dispute Resolution’ Africa The Lawyer,2023,2,on 9 September 2023. 87 Section 3, Law of Succession Act, (Chapter 160 of 2012). 88 See generally Gatuyu Justice, ‘Managing digital assets in Kenya: Regulatory framework, practices and future prospects’ November 2015. 89 Kitili J, `Digital Assets Unveiled: Deciphering Intellectual Property Rights and Privacy Considerations Centre for Intellectual Property and Information Technology,2024,4, on 21 May 2024. 90 Nzomo V, ’Social Media and the Law of Succession: A Kenyan Scenario’ CIPIT Insights,2014,3on 22 September 2014. https://thelawyer.africa/2023/09/09/kenya-preparedness-for-digital-dispute-resolution/ https://cipit.org/digital-assets-unveiled-deciphering-intellectual-property-rights-and-privacy-considerations/ https://cipit.org/digital-assets-unveiled-deciphering-intellectual-property-rights-and-privacy-considerations/ https://cipit.strathmore.edu/social-media-and-the-law-of-succession-a-kenyan-scenario/ 23 under the terms of service of social media platforms like X, accounts are not transferable upon death unless explicitly provided for, and this provision does not align with the intentions of the Law of Succession Act, which assumes seamless transfer of property.91 The Act remains entirely silent on how such contractual obligations should be reconciled with the rights of heirs under succession law. This disconnect leaves executors in a precarious legal situation, particularly when seeking access to assets governed by these agreements. In 2019, due to the lack of a legal framework that addressed digital assets in estate planning, Mobile operators in Kenya handed over Ksh 500 million as unclaimed mobile money to the government that belonged to people who were dead or had been presumed to be dead.92 Mpesa has implemented procedures to allow next of kin to claim the deceased’s mobile money. This is more of an exception than a rule as such mechanisms are rare and not uniformly applied across other digital platforms or assets.93 While the Law of Succession Act was comprehensive when first enacted, it is now outdated in its application to the modern, digital world. Section 3, in particular, must be amended to address the complex realities of digital wealth, ensuring that all forms of property, both tangible and intangible, can be inherited and managed effectively. The next section shall inform such amendments by evaluating the United States legal framework on digital asset management. 3.3 OVERVIEW OF USA LEGISLATION This comparative analysis of U.S. laws on digital asset ownership, transferability, and inheritance reveals how digital assets are managed differently in federal and state courts. It is particularly important in the US due to technical advances and regulatory considerations. Understanding these legislative frameworks demonstrates the complications of digital asset 91 Nzomo V, ’Social Media and the Law of Succession: A Kenyan Scenario’ CIPIT Insights,2014,3on 22 September 2014. 92 Kamau Muthoni, No law for inheritance of digital assets or property, Judiciary reveals, 2018, on 16 March 2019. 93 Kamau Muthoni, No law for inheritance of digital assets or property, Judiciary reveals, 2018, on 16 March 2019. https://cipit.strathmore.edu/social-media-and-the-law-of-succession-a-kenyan-scenario/ https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals https://www.standardmedia.co.ke/article/20011284484/no-law-for-inheritance-of-digital-assets-or-propertyjudiciary-reveals 24 regulation and effects on estate planning, consumer rights, and financial security. The analysis is relevant to this research to illustrate how international practices might guide more structured and legal digital asset management in different contexts in Kenya. 3.3.1 Stored Communications Act The Stored Communications Act (SCA), enacted by Congress in 1986, was designed to protect the privacy of electronic communications.94 At the time, Congress aimed to address how the rise of internet communications affected privacy rights under the Fourth Amendment.95 The SCA specifically prevents service providers, such as those offering email or cloud services, from disclosing the contents of a user’s electronic communications without consent.96 This act has become increasingly relevant in today’s digital world, where people store a significant amount of personal data online.97 Nonetheless, the SCA includes several important exceptions.98 First, while it restricts providers from sharing the content of communications, it does allow them to provide non-content information, such as the name and address linked to an account, to non-governmental entities.99 This can be compared to revealing the outside of an envelope, which contains the sender’s information, but not the letter inside.100 Moreover, the Act allows providers to disclose content information to an agent of the recipient.101 Lastly, the most significant exception allows 94 Walker D, ‘The new uniform digital assets law: estate planning and administration in the information age,’52, Real Prop. Tr. & Est. LJ, 2017, 52. 95 Medina M, ‘The Stored Communications Act: An Old Statute for Modern Times’ 63 Am. UL Rev. 2, 2013, 267. 96 DeSousa P, ‘Self-storage units and cloud computing: Conceptual and practical problems with the Stored Communications Act and its bar on ISP disclosures to private litigants,’ Geo. LJ, 102,2013, 247. 97 Nyala V,’ Ensuring the Future: The Critical Role of Succession Planning for Digital Assets,’ MMS Advocates, 2024 Ensuring the Future: The Critical Role of Succession Planning for Digital Assets - MMS Advocates on 24 October 2024. 98 Walker D,’ ‘The new uniform digital assets law: estate planning and administration in the information age,’55. 99 Section 2702(a)(3), Stored Communications Act (1986). 100 Wexler R, ‘Privacy as Privilege: The Stored Communications Act and Internet Evidence’ 134 Harv. L. Rev. 2, 2020, 2721. 101 Section 2702(b)(1), Stored Communications Act (1986). https://mmsadvocates.co.ke/ensuring-the-future-the-critical-role-of-succession-planning-for-digital-assets/#:~:text=Proper%20legal%20mechanisms%20ensure%20that%20control%20of%20these,transition%20of%20those%20assets%20to%20the%20right%20beneficiaries. https://mmsadvocates.co.ke/ensuring-the-future-the-critical-role-of-succession-planning-for-digital-assets/#:~:text=Proper%20legal%20mechanisms%20ensure%20that%20control%20of%20these,transition%20of%20those%20assets%20to%20the%20right%20beneficiaries. 25 providers to disclose content-based information if they receive the lawful consent of the communication’s originator, an addressee, or the subscriber.102 When it comes to digital assets of deceased or incapacitated individuals, determining what constitutes lawful consent becomes challenging.103 Although executors have legal authority to manage a decedent’s estate under state law, this authority does not automatically grant them the right to provide lawful consent under the SCA.104 In a 2008 incident involving Sahar Daftary, a model who died under unclear circumstances, her executors wanted to access to her Facebook account, believing it had evidence regarding her death.105 When the executors attempted to obtain a subpoena for the account, Facebook argued that the SCA prevented them from sharing the account’s contents without consent.106 The court sided with Facebook and declined to rule on whether the executors had the authority to grant lawful consent under the SCA.107 Even if the court granted the executors lawful consent under the SCA, the language of the Act remains discretionary due to the use of the word “may”.108 This creates a situation where many providers, fearing legal liability or litigation, are hesitant to share a deceased person's digital assets, even when executors present a valid claim.109 Consequently, executors often face significant barriers in accessing digital accounts leaving digital assets inaccessible or locked indefinitely after death.110 3.3.2 Computer Fraud and Abuse (CFAA) The Computer Fraud and Abuse Act (CFAA) is a significant federal law that addresses unauthorized access to computers and protects digital information from hacking and other 102 Section 2702(b)(3), Stored Communications Act (1986). 103 Walker D, ‘The new uniform digital assets law: estate planning and administration in the information age,’55. 104 Section 8, Revised Uniform Fiduciary Access to Digital Act (2015). 105 Wexler R, ‘Privacy as Privilege: The Stored Communications Act and Internet Evidence’, 2721. 106 Re Facebook Inc (2012), United States District Court, Northern District of California. 107 Re Facebook Inc (2012), United States District Court, Northern District of California. 108 Section 2702(b), Stored Communications Act (1986). 109 Walker D, ‘The new uniform digital assets law: estate planning and administration in the information age,’56. 110 Medina M, ‘The Stored Communications Act: An Old Statute for Modern Times’ 267. 26 malicious activities.111 The CFAA was first enacted in 1986 and has since been amended severally to expand what is covers. It now includes computers that are connected to the internet, federal systems, and those utilized by financial institutions.112 The statute does not clearly define “hacking” but suggests that it is all forms of illegal actions that involve getting into computers without permission or going beyond the access that was allowed.113 Such ambiguity has enabled legislators to use the CFAA to tackle different types of computer misuse. However, it has also sparked discussions about how it should be interpreted.114 The Act is crucial for protecting digital assets, but the vague definitions creates some legal uncertainty.115 Furthermore, the CFAA really revolves around ideas such as “authority,” “exceeds authorized access,” and “without authorization,” but the statute fails to provide clear definitions for any of these terms.116 Authority can be given in different ways, through permissions from employers or agreements from users, but its limits usually depend on the specific context.117 Courts have different opinions on whether authority violations should be seen only through technological methods, like bypassing passwords, or if breaches of contract, violating terms of service, should also be included.118 This uncertainty creates difficulties for those in charge of managing digital assets, as they might accidentally violate the CFAA by accessing a deceased person's accounts without explicit permission.119 The ongoing legal discussions show how important it is to find a balance between security and flexibility in reagard to managing digital assets.120 111 Congressional Research Service, Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th Congress, 21 September 2020, 3. 112 Sollitto N, ‘What is the Computer Fraud and Abuse Act (CFAA)?’ Up Guard, 2024,8 What is the Computer Fraud and Abuse Act (CFAA)? | Up Guard n 18 November 2024. 113 Ohm P, ‘The Computer Fraud and Abuse Act After Van Buren’ American Constitution Society, 2024,8 The Computer Fraud and Abuse Act After Van Buren | ACS on 18 November 2024. 114 Hourican S, ‘CFAA and Van Buren: A Half-Measure for a Wholly Ineffective Statute’ 47 Seton Hall Legis. J 1, 2023, 30. 115 Congressional Research Service, Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th Congress, 4. 116 Congressional Research Service, Cybercrime and the Law: Computer Fraud and Abuse Act (CFAA) and the 116th Congress, 6. 117 Lee J, ‘Death and Live Feeds: Privacy Protection in Fiduciary Access to Digital Assets’ Colum. Bus. L. Rev., 2015, 654. 118 Ohm P, ‘The Computer Fraud and Abuse Act After Van Buren’10. 119 Hourican S, ‘CFAA and Van Buren: A Half-Measure for a Wholly Ineffective Statute’ 30. 120 Wilbur S, ‘What Does This Mean: Examining Legislative Ambiguities in the Cybersecurity Act of 2015 and the Potential for a Future Circuit Split on Interpretation’ 48 Seton Hall L. Rev. 1, 2017, 275. https://www.upguard.com/blog/what-is-the-cfaa#:~:text=Today%2C%20the%20CFAA%20is%20the%20leading%20federal%20law,used%20by%20the%20federal%20government%20or%20financial%20institutions. https://www.upguard.com/blog/what-is-the-cfaa#:~:text=Today%2C%20the%20CFAA%20is%20the%20leading%20federal%20law,used%20by%20the%20federal%20government%20or%20financial%20institutions. https://www.acslaw.org/analysis/acs-journal/2020-2021-acs-supreme-court-review/the-computer-fraud-and-abuse-act-after-van-buren/ https://www.acslaw.org/analysis/acs-journal/2020-2021-acs-supreme-court-review/the-computer-fraud-and-abuse-act-after-van-buren/ 27 Nonetheless, this Act imposes civil and criminal penalties on anyone who accesses a computer without permission or goes beyond their authorized access to obtain information from a protected computer.121 All 50 U.S. states also have laws against unauthorized computer access or hacking.122 When evaluating whether a fiduciary has legal authority under the CFAA, two key issues arise. First, whether the fiduciary has clear legal authority to access the decedent’s or incapacitated person’s computer or digital assets under state law or the governing estate documents.123 Secondly, whether accessing these assets would violate the terms of service agreements (TOSAs) linked to the digital accounts.124 Even if a fiduciary has legal authority, they could may still violate the CFAA if their actions breach the terms of a TOSA.125 3.4 State Specific Approaches to Regulation of Digital Assets Several U.S. states have enacted laws to regulate access to digital assets after an individual’s demise or incapacitation.126 In Alabama, along with Alaska, California, Georgia, and Colorado, the Revised Uniform Fiduciary Access to Digital Assets Act allows a decedent's personal representative or trustee to manage and control digital assets and electronic communications.127 This law ensures that fiduciaries have legal authority to handle digital property, ensuring a smooth transition during estate administration.128 In Connecticut, the state has a more specific approach under SB 262 (Public Act No. 05-136), which focuses on email and social media accounts.129 To access these digital assets, an executor must present a death certificate and official documentation of their appointment.130 This process provides legal access to a deceased individual’s emails or social networking 121 Walker D, ‘The new uniform digital assets law: estate planning and administration in the information age,’57. 122 Anderson A, ‘The computer fraud and abuse act: Hacking into the authorization debate,’ Jurimetrics,2013, 449. 123 Scaniffe N, ‘A New Gold Rush: How Trust Law Can Incentivize Prudent Cryptocurrency Estate Planning and Increase State Revenue’ Quinnipiac Prob. LJ, 2022, 171. 124 Elrod L and Spector G, ‘Review of the Year 2018–2019 in Family Law’ Family Law Quarterly, 2020, 268. 125 Klein A and Parthemer M, ’Who will delete the digital you: Understanding fiduciary access to digital assets,’ Prob. & Prop,30,2016, 32. 126 Tarney G, ‘A call for legislation to permit the transfer of digital assets at death,’ Cap. UL Rev, 40,2012, 773. 127 Everplans, State-by-State Digital Estate Planning Laws,2024,2. 128 Nyala V,’ Ensuring the Future: The Critical Role of Succession Planning for Digital Assets,5. 129 Everplans, State-by-State Digital Estate Planning Laws,3. 130 Pinch R, ‘Protecting digital assets after death: Issues to consider in planning for your digital estate,’ Wayne L. Rev,60,2014, 545. 28 accounts, enabling representatives to manage crucial online communications and interactions after death.131 Delaware and Florida have also adopted detailed laws regarding digital asset management.132 Delaware’s House Bill recognizes the growing importance of online life, allowing fiduciaries to access and control digital assets of incapacitated individuals, decedents, or trust beneficiaries.133 Similarly, Florida’s Senate Bill 494 establishes procedures for disclosing digital assets and grants legal authority to guardians or other fiduciaries over these assets.134 Both states ensure that fiduciaries can navigate the complexities of managing digital accounts after death while following specific legal protocols.135 3.5 Conclusion Kenya can adopt several best practices from the U.S. regarding the regulation of digital assets in estate planning.136 First, Kenya can introduce a legal framework similar to the RUFADAA, which grants fiduciaries the power to manage digital assets posthumously or incapacitation.137 This would ensure clarity and consistency in managing digital accounts.138 Additionally, Kenya can follow Connecticut’s approach of requiring official documentation, such as death certificates, to access digital assets to prevent unauthorized access.139 Furthermore, the recognition of the increasing significance of online life outlines the importance of comprehensive laws that account for the management of digital property. Furthermore, Kenya can explore new ideas to tackle the challenges that exist in the US.140 For example, policymakers in the ICT sector could introduce mandates that require tech companies to teach people about their rights and responsibilities when it comes to inheriting digital 131 Tarney G, ‘A call for legislation to permit the transfer of digital assets at death,’ 774. 132 Everplans, State-by-State Digital Estate Planning Laws,5. 133 Scaniffe N, ‘A New Gold Rush: How Trust Law Can Incentivize Prudent Cryptocurrency Estate Planning and Increase State Revenue’ Quinnipiac Prob. LJ, 2022, 171; House Bill is a designation used in the United States to identify proposed legislation introduced in the House of Representatives of a state. 134 Elrod L and Spector G, ‘Review of the Year 2018–2019 in Family Law’ Family Law Quarterly, 2020, 269. 135 Pinch R, ‘Protecting digital assets after death: Issues to consider in planning for your digital estate,’ 546. 136 Nyala V,’ Ensuring the Future: The Critical Role of Succession Planning for Digital Assets,6. 137 Walker D, ‘The new uniform digital assets law: estate planning and administration in the information age,’56. 138 Nyala V,’ Ensuring the Future: The Critical Role of Succession Planning for Digital Assets,7. 139 Everplans, State-by-State Digital Estate Planning Laws,5. 140 Nyala V,’ Ensuring the Future: The Critical Role of Succession Planning for Digital Assets,8. 29 assets.141 Kenya could use a centralized method to make managing digital assets easier for fiduciaries, instead of the different approaches used by U.S. states.142 Also, lawmakers should implement appropriate dispute resolution mechanisms to deal with disagreements between user agreements and inheritance rules.143 141 Kibwage B, ‘Consumer protection in Kenya in the age of decentralized virtual currency’ unpublished, Strathmore University, Nairobi, 2021, 34. 142 Prinsloo P and Rogers K, ‘Data privacy on the African continent: Opportunities, challenges and implications for learning analytics,896. 143 Saidakhrarovich S, ‘Digitalization in inheritance law’ 10 World Bulletin of Management and Law 1, 2022, 24. 30 CHAPTER 4: DIGITAL SERVICE PROVIDERS AND DATA PROTECTION IN ESTATE PLANNING 4.1 Introduction The digital era has transformed the processes by which individuals generate, preserve, and disseminate assets.144 It has prompted significant inquiries regarding the administration of these digital estates post-mortem.145 Digital service providers (DSPs) significantly influence this process via their policies regarding account access, data transfer, and deletion.146 This chapter evaluates various policy issues related to digital asset ownership, access, and control after death. It sheds light on the lack of a cohesive legal framework to regulate these assets. The existing frameworks of property, contract, and probate laws inadequately address the distinct and dynamic aspects of digital inheritance.147 This creates a legal gap that has not been sufficiently addressed by market solutions or social norms.148 This chapter also assesses the implications for privacy and digital estate management by focusing on the interrelation between DSP terms of service and Kenya’s Data Protection Act. Additionally, it suggests strategies to harmonize DSP practices and data protection regulations with international best practices. 4.2 Digital Service Providers & Digital Estate Management DSPs provide digital tools, platforms, and services that help individuals and businesses navigate the digital environment more easily.149 They provide a variety of services, including cloud storage, social media, financial services, e-commerce, and communication options.150 In 144 Banta N, ‘Property interests in digital assets: The rise of digital feudalism’1099. 145 Park Y, Sang Y, Lee H and Jones-Jang S, ‘The Ontology of Digital Asset After Death: Policy Complexities, Suggestions and Critique of Digital Platforms’ 22 Digital Policy, Regulation and Governance 1, 2020, 4. 146 Frosio G and Geiger C, ‘Taking Fundamental Rights Seriously in the Digital Services Act's Platform Liability Regime’ 29 European Law Journal 1, 2023, 34. 147 Subotnik E, ‘Copyright and the Living Dead? Succession Law and the Postmortem Term’ 29 Harvard Journal of Law & Technology, 2015, 77. 148 Park Y, Sang Y, Lee H and Jones-Jang S, ‘The Ontology of Digital Asset After Death: Policy Complexities, Suggestions and Critique of Digital Platforms’5. 149 Putrevu J and Mertzanis C, ‘The Adoption of Digital Payments in Emerging Economies: Challenges and Policy Responses’ 26 Digital Policy, Regulation and Governance 5, 2024, 479. 150 Aegis S, ‘Kenya’s Digital Ecosystem in 2024: Insights and Opportunities’ Smith Corp, 2024,1 - Kenya’s Digital Ecosystem in 2024: Insights and Opportunities on 5 December 2024. https://www.smithcorp.co.ke/kenyas-digital-ecosystem/ https://www.smithcorp.co.ke/kenyas-digital-ecosystem/ 31 today’s economy, it is crucial for DSPs to continue evolving to offer infrastructure and solutions that empower users across all aspects of their digital lives.151 In Kenya, companies like Safaricom, Meta, and Google are really important in the daily lives of individuals.152 They offer reliable platforms for money transfers, like M-Pesa, and provide cloud services that help manage data effectively.153 Their policies on the handling of digital assets after one’s death will help in determining how such assets shall be treated upon the owner’s demise.154 DSPs have set up various policies to handle account access after a user passes away, usually focusing on privacy and security.155 In Kenya, M-Pesa, which is run by Safaricom, locks a deceased user’s account to stop any unauthorized transactions from happening.156 The next of kin needs to submit several documents to access the funds. These documents include a death certificate, a statutory declaration, a grant of probate or letters of administration, and a letter from local provincial authorities confirming their relationship to the deceased.157 This process is thorough and makes sure that the digital financial assets of someone who has passed away are only accessible to the actual beneficiaries.158 In a similar way, global DSPs such as Facebook enable memorialization, which maintains the account by retaining the photos and posts while preventing logins.159 Some platforms, like Apple, let users choose legacy contacts who can access certain types of data without needing proprietary content.160 Such policies show how DSPs are striving to find a balance between 151 Frosio G and Geiger C, ‘Taking Fundamental Rights Seriously in the Digital Services Act's Platform Liability Regime’35. 152 Kenya Tech Trends 2023 | Safaricom Newsroom 153 Stadler C, ‘M-PESA: Why The World’s First Large Mobile Payment Platform Keeps On Winning’ Forbes, 2024, 1 M-PESA: Why The World’s First Large Mobile Payment Platform Keeps On Winning on 5 December 2024. 154 Putrevu J and Mertzanis C, ‘The Adoption of Digital Payments in Emerging Economies: Challenges and Policy Responses’ 480. 155 Jagannath R and Jain A, ‘Browser‐in‐the‐middle attacks: A comprehensive analysis and countermeasures’ 7 Security and Privacy 5, 2024, 410. 156 Tyce M, ‘Beyond the neoliberal-statist divide on the drivers of innovation: A political settlement reading of Kenya’s M-Pesa success story’ 125 World Development, 2020, 104621. 157 Wamathai J, ‘How next of kin can access Mpesa money when their loved one dies’ Hapa Kenya, 2018,1 How next of kin can access Mpesa money when their loved one dies - Hapa Kenya on 5 December 2024. 158 Tyce M, ‘Beyond the neoliberal-statist divide on the drivers of innovation: A political settlement reading of Kenya’s M-Pesa success story’104621. 159 McGuigan L, Selling the American People: Advertising, Optimization, and the Origins of AdTech, MIT Press, Cambridge, 2023, 31. 160 Morton et al, ‘Equitable Interoperability: The "Supertool" of Digital Platform Governance’ 40 Yale J. on Reg. 1013, 2023. https://newsroom.safaricom.co.ke/innovation/kenya-tech-what-to-watch-out-for-in-2023/ https://www.forbes.com/sites/christianstadler/2024/06/11/m-pesa-why-the-worlds-first-large-mobile-payment-platform-keeps-on-winning/ https://hapakenya.com/2018/08/24/how-next-of-kin-can-access-mpesa-money-when-their-loved-one-dies/#:~:text=How%20next%20of%20kin%20can%20access%20Mpesa%20money,8%208.%20Fill%20a%20next%20of%20kin%20form 32 keeping things secure and making them accessible.161 However, they may cause some issues for beneficiaries without pre-existing access arrangements. 4.3 Conflicts Between DSP Requirements and Digital Asset Management DSPs and their terms of service complicate the issues surrounding digital inheritance.162 One major issue is the lack of direct access to digital assets due to service agreements.163 Many DSPs retain significant control over user accounts, stipulating in their terms that accounts are non-transferable upon death.164 In a certain case, the relatives of a deceased Marine requested Yahoo email access to manage his assets. Yahoo’s privacy standards restricted access, and the court upheld Yahoo’s position due to its contractual terms of service.165 Such court decisions mean that valuable assets, such as music libraries or eBooks, often cannot be passed on to heirs which leads to potential losses to the deceased’s estate.166 This limitation outlines a gap between the practical realities of digital ownership and the legal framework needed to ensure inheritance rights.167 Further, the service agreements that govern account access are often fluid, with DSPs retaining the ability to unilaterally alter terms without notice.168 This lack of consistency complicates efforts by beneficiaries to manage or access digital assets.169 For example, Gmail allows access to accounts of deceased users if certain criteria are met, such as proof of death and a legal claim.170 However, there is no standardized approach across platforms which creates uncertainty for heirs. Moreover, some services, like Skype, lack provisions allowing users to 161 Jagannath R and Jain A, ‘Browser‐in‐the‐middle attacks: A comprehensive analysis and countermeasures’ 410. 162 Park Y, Sang Y, Lee H and Jones-Jang S, ‘The Ontology of Digital Asset After Death: Policy Complexities, Suggestions and Critique of Digital Platforms’5. 163 Pedersen C, ‘Digital assets after death’ Journal of Accountancy, 2019, Digital assets after death - Journal of Accountancy on 6 December 2024. 164 Aegis S, ‘Kenya’s Digital Ecosystem in 2024: Insights and Opportunities’1. 165 Re Estate of Ellsworth (2005), Michigan Court of Appeals, United States. 166 Park Y, Sang Y, Lee H and Jones-Jang S, ‘The Ontology of Digital Asset After Death: Policy Complexities, Suggestions and Critique of Digital Platforms’5. 167 Akramov A., ‘The Impact of Digitalization in Inheritance Law’ 4 Qubahan Academic Journal 3, 2024, 111. 168 Micheli M, Ponti M, Craglia M and Berti Suman A., ‘Emerging models of data governance in the age of datafication’ 7 Big Data & Society 2, 2020,6. 169 Park Y, Sang Y, Lee H and Jones-Jang S, ‘The Ontology of Digital Asset After Death: Policy Complexities, Suggestions and Critique of Digital Platforms’6. 170 Harbinja E, ‘Emails and death: Legal issues surrounding post-mortem transmission of emails’ 43 Death Studies 7, 2019, 440. https://www.journalofaccountancy.com/issues/2019/aug/estate-planning-for-digital-assets.html https://www.journalofaccountancy.com/issues/2019/aug/estate-planning-for-digital-assets.html 33 delete accounts, leaving beneficiaries without a clear mechanism to manage or dispose of the deceased’s digital presence.171 Adding to these challenges is the absence of a legal framework governing digital inheritance, both in Kenya and globally.172 Despite the growing significance of digital assets, ranging from social media profiles to financial accounts, many jurisdictions lack comprehensive legislation addressing their inherit