Surrogate Whelan ESTATE OF JOHN W.B. HADLEY, Deceased (94/A 2139P) — In this proceeding, petitioner, Nicholas J. Hadley, a co-trustee of a trust created under Article SEVENTH of the will of this decedent, seek leave to resign and the appointment of CIBC National Trust Company as his successor, without bond. Petitioner requests that virtual representation, pursuant to SCPA 315(2), be invoked in order to dispense with service of process upon certain contingent interests, namely the grandchildren of decedent and several named charities. Petitioner asserts that the presumptive remainderpersons of the trust created under the will of this decedent adequately represent such interests. As a threshold issue, the court must determine whether the interests of these presumptive interests are sufficiently similar to adequately safeguard the interest of the contingent remainderpersons thereby permitting the dispensation of service of process upon them. With respect to class interests, SCPA 315(2) provides in pertinent part as follows: (a) Where an interest in the estate has been limited as follows, it shall not be necessary to serve process on any other person than as herein provided: (i) In any contingency to the persons who shall compose a certain class upon the happening of a future event, the persons in being who would constitute the class if such event had happened immediately before the commencement of the proceeding. (ii) To a person who is a party to the proceeding and the same interest has been further limited upon the happening of a future event to a class of persons described in terms of their relationship to such party, the party to the proceeding. Upon careful review of the record consisting of the petition, the decedent’s last will and testament and consents of the presumptive remainder interests, the court finds that the presumptive and contingent interests share similar economic interests, that there is no conflict of interest between them and that the presumptive remainderpersons will adequately protect the interests of the contingent remainderpersons in this proceeding (see Matter of Connable, 102 Misc2d 406; Matter of Goldstick, 177 AD2d 225). Accordingly, the court grants petitioner’s request to apply virtual representation. With the court having determined the adequacy of the virtual representation, jurisdiction has been obtained over those shown as necessary parties to this proceeding and no one has appeared in opposition to the relief requested by petitioner. CIBC National Trust Company, the proposed successor trustee, has consented to the relief as successor trustee in connection with this proceeding. The subject decedent’s will was duly admitted to probate in November of 1994 and letters of trusteeship of subject trust issued thereupon to petitioner and Ian Michel. Said letters remain in full force and effect. Pursuant to Article SEVENTH of decedent’s will, a trust was created for the lifetime benefit of his spouse, Robin. Upon the death of Robin, the trust terminates, if not having terminated sooner pursuant to the trustees’ invasion power, with the trust principal then remaining disposed of pursuant to Article EIGHTH or NINTH, as applicable. Article EIGHTH provides, after the payment of a bequest to two friends, that the trust principal then remaining be divided into as many shares as required to provide one share for each of decedent’s children then living and one share for the descendants then living of each of his children who is then deceased and if any such descendant is under age thirty to his trustees in separate trust. Article NINTH provides that to the extent that the any part of his estate or the remainder of any trust is not effectively disposed of pursuant to any other provision of his will, decedent gives such property to three named charities in equal shares. By agreement dated November 17, 2017, petitioner agreed to resign as trustee of subject trust before December 31, 2019. Pursuant thereto, petitioner desires to be relieved of his responsibility as trustee and is afforded the power to resign at any time under decedent’s will. Thus, he wishes to resign as trustee and nominates CIBC National Trust Company pursuant to the authority given them under Article SECOND of decedent’s will. The interested parties herein have consented to the requested relief, including dispensing with an accounting in connection with this proceeding. Upon a careful reading of the will and more specifically the trust provisions, the court finds that the appointment of CIBC National Trust Company as successor trustee to serve with the continuing trustee, Ian Michel, would not be in contravention thereof. There being no opposition, the petition seeking leave to resign and the appointment of a successor trustee is granted. Upon entry of the decree herein, the letters of trusteeship heretofore issued for the trust created under Article SEVENTH of decedent’s will shall be revoked and amended letters of trusteeship shall issue to CIBC National Trust Company and Ian Michel, upon qualification, without bond. At such time, petitioner shall turn over any and all assets of the trust within his control, including all books and papers, to CIBC National Trust Company and Ian Michel. The court dispenses with an accounting, but notes that petitioner will not be discharged without seeking such relief pursuant to Article 22 of the SCPA. ESTATE OF PETER MURRAY, Deceased (18-1561/A) — By this proceeding, petitioner, one of the duly appointed fiduciaries of the estate of this decedent, seeks an order granting her access to the account decedent maintained with Apple, Inc. so she can recover the personal data from the account. Jurisdiction has been obtained over those shown as necessary parties to this proceeding and no one has appeared in opposition to the relief requested by petitioner. Decedent died on March 25, 2017 survived by his parents, Beatrice Murray and Michael Murray. Pursuant to decree dated May 7, 2018, decedent’s parents were appointed co-administrators of his estate and letters of administration issued accordingly. Although both of decedent’s parents were issued letters of administration, the instant proceeding was commenced solely by Beatrice Murray. Petitioner asserts that when the decedent died, he was the user of an Apple iPhone 7 cell phone. The phone carrier assigned telephone number 631-6**-8*** to the device and an Apple ID was created using the email address P******[email protected]. The cell phone and presumably the account contains data associated with this Apple ID. Petitioner indicates that she was, and is, the owner of this cell phone, that decedent merely had permission to use the phone and that he was the only user of the Apple account associated with the aforementioned cell phone number and email address at the time of his death. Petitioner is of the good faith belief that the data within the phone contains information in the form of telephone records, voice messages and text messages received and sent by the decedent which would assist in determining the source of drugs obtained by him. She indicates that information contained “in the data within the phone” as well as the contents of these electronic communications of the user is reasonably necessary for the administration of decedent’s estate. Thus, petitioner requests the disclosure of this data and electronic communications via access to the decedent’s Apple ID. Upon information and belief, petitioner asserts that there are no other authorized users of this Apple iPhone 7 cell phone, using the telephone number 631-6**-8***. Further, petitioner asserts that under the facts of this case, no law, legal duty, or obligation, including, but not limited to any provision of state or federal law prohibits Apple from disclosing to petitioner the contents stored in decedent’s account. Further, petitioner indicates that she submitted a written request to Apple, the custodian, to transfer ownership of the Apple ID and provide access to the data. Such request included a copy of the death certificate of her son, the user, and a copy of the letters of administration issued to petitioner. The custodian contacted petitioner and explained the procedure for transferring the Apple ID. A copy of the emails and text messages have been submitted in connection with this proceeding. According to petitioner, a representative of Apple has indicated that Apple will continue with petitioner’s request to transfer ownership of the Apple ID to petitioner, which will allow access to the data from decedent’s cell phone, if a court order specifies that the decedent was the user of all accounts associated with the Apple ID, that the “requestor” (petitioner) is the legal representative of the decedent, that the requestor is the “agent” of the decedent and her authorization constitutes “lawful consent”, and that Apple is ordered by the court to assist in the recovery of decedent’s personal data from the Apple account(s). Petitioner asserts that, as the duly appointed fiduciary, she is the legal personal representative of the decedent and that a court order would constitute “lawful consent” as those terms are set forth in the Electronic Communication Privacy Act (18 USC §§2510, et seq.) and the Stored Communications Act (18 USC §§2701, et seq.). Petitioner avers that under the circumstances presented, there is no state or federal law that prohibits disclosure of the contents stored in decedent’s account. EPTL Article 13-A, which addresses access to digital assets, became effective in September of 2016. This article, as it relates to this proceeding, is applicable to an administrator acting for a decedent who died before, on or after its effective date (EPTL 13-A-2.1(a)(2)) and a custodian if the user resided in this state at the time of his death (EPTL 13-A-2.1(b)). Pursuant to the relevant provisions of Article 13-A, where a user utilizes an “online tool”, which is a service provided by a custodian that permits a user to give directions for disclosure or nondisclosure of digital assets to a third party, such directive overrides a contrary directive contained in a will, trust, power of attorney or other record. Here, it is unclear whether Apple provides such tool or, if it is provided, whether decedent utilized it. It does not appear that decedent addressed disclosure of his digital assets via a will, trust or other record (EPTL 13-A-2.2(b)). Although no one has appeared in opposition to the requested relief, in this evolving area, the former surrogate of this county, John M. Czygier, Jr., expressed his concern regarding unintended consequences of permitting unfettered access to a deceased user’s digital assets (see Matter of White, NYLJ Oct. 3, 2017, at 25, col. 1). The undersigned acknowledges this concern and appreciates the delicate balance between a decedent’s right to privacy and a fiduciary’s duty to marshal estate assets. Here, petitioner’s vague assertion that access to the content of the electronic communications held by Apple, Inc. as custodian is reasonably necessary to the administration of the estate is not supported by the record. Further, the Apple iPhone 7 that she claims ownership of is merely a portal for accessing the content and digital assets associated with a specific Apple ID. Absent from the record is an allegation supported by proof of a connection between the information petitioner seeks and the administration of this decedent’s estate. Rather, it appears that petitioner seeks the content of decedent’s electronic communications so she can conduct an investigation into facts and circumstances leading up to tragic loss of her son. While the court is not unsympathetic to the concerns of petitioner and her desire to uncover the identities of those individuals she believes were, in part, responsible for the death of her son, she has not established a sufficient nexus to warrant granting the requested relief. Further, the court notes that a distinction must be made between content based disclosure and non-content based disclosure with respect to a deceased user. Subject to other requirements, disclosure of content of electronic communications involves an affirmative act by the decedent whether online or via an instrument or document (EPTL 13-A-3.1), while disclosure of non-content based digital assets merely requires that the decedent did not prohibit the disclosure (EPTL 13-A-3.2). Here, as it does not appear from the record that decedent prohibited disclosure of his digital assets, pursuant to EPTL 13-A-3.2, the court shall direct Apple, Inc. to disclose to petitioner solely the non-content information to wit: a catalogue of electronic communications sent or received by decedent and digital assets associated with decedent’s Apple ID, other than the content of electronic communications. In the event that greater access to this account appears warranted, the fiduciary may commence a new proceeding seeking same. Based upon the foregoing the court finds that decedent was the user of the specific account associated with the subject Apple ID, that the petitioner is a duly appointed legal representative of this decedent, that disclosure of a catalogue of electronic communications sent or received by decedent and digital assets associated with subject Apple ID, other than the content of electronic communications, was not prohibited by decedent and does not require lawful consent under the EPTL Article 13 or the Stored Communications Act (18 USC §§2701, et seq.) Accordingly, it is ORDERED, that upon submitting the necessary form(s) and other documentation, Apple, Inc. is hereby directed to disclose to petitioner a catalogue of electronic communications sent or received by decedent and digital assets associated with subject Apple ID, other than the content of electronic communications; and it is further ORDERED, that the relief requested by petitioner is granted solely to the extent expressly provided herein.
