Recently, in Victoria, after the death of Marija, a handwritten note in Croatian, signed by Marija, was found in her safe custody packet at the ANZ bank, which also contained Marija's Certificate of Title. The note was dated one day after the date of Marija's Will (which was also handwritten). The executor arranged for a certified translation of the note.
The note gave clear directions for the location of $50,000 cash money that was buried in Marija's yard, 'to the right of the kitchen window, immediately next to the tree and edge of the concrete'. It authorised the executors named in Marija's Will to send $45,000 to Ilija (a beneficiary who received $20,000 in her Will) and her wish was for Ilija to use some of the money to bury Marija in Gorican, where she was born, and build a nice monument. It authorised the executors to keep $5,000 for their help.
The executor located the buried cash money of $50,000, and asked the court to make a declaration that the handwritten note was an informal Will. The court decided the handwritten note was a Codicil to the Will: Marija had signed the document, she had referred to funds being used for her burial, and that the note would take effect if she died – it contained testamentary wishes.
You may have heard stories of people finding a stash of cash after a family member dies. A friend may have told you 'dad told me where he has been collecting cash over the years, and wanted me to have it, as my siblings are better off'. You may have some cash yourself, and plans for it, that you may, or may not, have communicated to some or none of your family members, or the nominated executors of your estate under your Will.
It is not commonplace for a Will to refer to a location of cash and include a specific gift, such as, 'I leave the $75,000 cash in my arrowroot biscuit jar located at the back of my wardrobe to Jennifer.' Firstly, the amount of cash that you have at the time you execute your Will, could increase or decrease before your death. Secondly, as lawyers, it is our job to flag potential problems, and a problem with a specific gift of cash is that, in dealing with cash, it can mysteriously vanish after a person has died: “what cash?” Mention of cash in a Will and then a failure to locate any cash, or a different amount of cash, can naturally lead to squabbles between beneficiaries, and lack of trust in those tasked as executor. Thirdly, many cash stashes are kept out of bank accounts to be kept private.
Many Wills do refer to leaving the rest and residue of an estate 'equally between my children, Charles, Jennifer and Eddie'. The rest and residue encompasses all assets of your estate, unless you have specifically dealt with it in your Will – for example, you leave your Share portfolio to Charles, your jewellery collection to Jennifer, and your car to Eddie. Anything else, such as funds in bank accounts, real property, personal items, and cash, forms the rest and residue of your estate. If you did not leave specific items to Charles, Jennifer and Eddie, the shares, jewellery and car would be sold, and become part of the rest and residue to be divided three ways.
Imagine if you appointed Charles as your executor, and Charles did not locate any cash. Jennifer has seen the Will which specifically left her $75,000 cash. She might feel some distrust toward Charles. Or, Charles may have located the cash, counted it up, seen that it is worth far more than the Share portfolio, and decided he should have some, or all, for himself. After all, he's the executor. Eddie may have been living closest to you in your later years, after you made the Will, and provided you with much care and comfort. You may tell him about the cash and that you want him to have it (Jennifer has lived interstate since shortly after you made your Will 15 years ago, and not provided care and comfort you and she previously discussed). Neither Jennifer or Charles know about this conversation, and the only other person who could verify that a conversation took place, is now permanently unavailable to shed any light on the whereabouts or discussions about the cash.
In a worst case scenario, Jennifer, Eddie and Charles may spend tens of thousands of dollars of their inheritance on lawyers and barristers, in Supreme Court proceedings.
So how do you deal with cash?
You are in the best position to tell who you choose about any cash stashes you may have buried in your yard, or your wardrobe.
*Disclaimer：This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
Associate and Office Manager (Parramatta)
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