Avanti Lawyers

04/08/2026

MARINE LEGAL PROBLEMS

One thing about boating is that nothing ever goes wrong. Yeah right

Murphy’s law doesn’t apply and electronic gremlins are a myth ( a very loud beeping myth)

Boats seem to be competing with Spacez. ( deliberate) for complexity and you must navigate the responsibility audit trail to get things working properly. Warranties what ?

It used to be that you could DIY yourself out of problems but no longer

Use experienced tradies and pay what it should cost. Get a written quote and don’t change it. The uplift cost is usually logarithmic and undocumented. Set a regular milestone and check. If you are relatively unfamiliar with equipment get an expert to help.

One myth exploding right here. There is no such thing as a cheap boat cheap upgrade or cheap fix. Dodgy Bros cheap promises will deflate faster than your pink flamingo sunlounge

If the legal horrors arise they like paperwork. Document cross check and ensure that you are on the right side of evidence.

Major projects ( > 20k) suggest you get some project management discipline. Courts expect commercial common sense and documents. Otherwise you are just ( insert activity) into the wind.

Avanti Lawyers deal with fallouts when your warm and hopeful expectation
meets the cold biting winds of reality.

With things so expensive and owners so time poor arrange some form of support from a boat management team.

Avanti Lawyers are experienced marine lawyers and like to front end a marine project with certainty and discipline to preserve goodwill. Not disaster recovery with goodwill gone like a leaky pool toy.

04/08/2026

JOINT BANK ACCOUNT WITH SEPARATE OPINIONS

We live in the day of blended families. The somewhat awkward dynamics of partners ex partners and disparate life outcomes creates confusion and distress

A classic powder keg is the joint bank account with substantial cash held jointly with the elderly parent and an adult child taking a carer role.

At some point a senior person may go to cash by selling active assets and holding the simplest form of asset , namely cash at bank. During the eighties this was popular with high interest rates

A common arrangement is a joint bank account as a convenience not with equal contributions

The courts deal with relationship disputes and property entitlements from a variety of sources. Business partnerships, romantic partnerships and deceased individuals with relatives from blended families

If you are recorded as a joint holder of a bank account even as a convenience for a carer role to manage funds, there is an automatic right of survivorship vis a vis the bank. You get the money. However this asset acquisition may face a challenge from extended family members. In essence they may say that all or a substantial portion should form part of the deceased estate.

There is no simple answer to this conundrum. It depends on what assets are available and what claims are made.

It should be noted that a well drafted Deed of Settlement can settle all claims. You do not need the court system.

A suggestion is to formalise your arrangement in the Will , Enduring Powers of Attorney and Letter of Wishes. An example is to state your intention that your relative who is your career may retain an amount of the joint bank account proceeds and hold the balance for the estate. If not in your Will that is not binding and legal ownership vests according to the right of survivorship.

The common sense rule is not to destroy your family and waste legal fees to reach a conclusion. Plan ahead and work out what’s fair. The legal system may not disturb an arrangement based on stated intention, foresight and fairness within the range of reasonable outcomes.

Too often close family members devolve to become financial monsters and money tears families apart.

Michael Goodman

Principal Avanti Lawyers

[email protected]

04/08/2026

DISCRETIONARY TESTAMENTARY TRUSTS

The proposed but now withdrawn tax changes highlighted this type of trust

A discretionary testamentary trust is a creature of your Will. It sets up a legal and financial arrangement to set up a trust for the beneficiaries and allows the trustee ( usually executor) to distribute trust capital and income amongst the beneficiaries in unequal amounts. It is thus similar to the usual family trust

To maintain the tax status quo where there is no minimum tax of 30% there is a purpose test. The purpose of the discretionary testamentary trust must be for the benefit of the beneficiaries.

Unlike the family trusts that own many businesses there is no formal lengthy trust deed. Just simple wording in your Will

*Residual estate settled on a discretionary trust

*Define beneficiaries ( caveat purpose test and no more bucket beneficiaries)

*Distributions are at the discretion of the trustee and may be withheld or may be unequal. There is no automatic vesting of capital or income.

*Usually the distribution must be used for a charitable purpose such as education and advancement in life. This may be the pressure point for the purpose test.

In many cases where there are substantial assets, and in particular active assets a discretionary trust is a great idea. We have a concept of legal age maturity and financial judgment maturity and these are separate and distinct states.

The two financial black holes in society , namely insolvency and family law breakup and breakdown may not pass the event horizon of the trust assets and thus assets are protected. There may be some evidentiary spill over in terms of potential financial resources.

Like all future decisions, involve family and good advisors. Your Will , Enduring Power of Attorney and Letter of Wishes are essential to a good testamentary disposition and outcome.

Other parts of the Will remain and you can still make a specific bequest of your uncle’s favourite rabbit foot gambling charm. It is entirely exempt from classification even though it is clearly an incoming earning asset.

Michael Goodman

Principal

Avanti Lawyers

[email protected]

03/08/2026

EXECUTOR DE SON TORT

Interim deceased estate management

There is oft a complicated state of affairs existing from the date of death, during the painful grieving process and then through the difficult stage in managing the financial affairs associated with a deceased estate. There is first the interim stage sorting through papers and contacting sometimes indifferent institutions.

We live in a country with sophisticated financial processes. Our super fund values will exceed $6 trillion in 2030.

And yet ASIC was forced to intervene to sort out the stress and delays for death benefit payments or disability payments within the fund.

If your financial affairs are super fund centric , your dependent or nominated beneficiary with depleted financial resources must run the gauntlet of indifferent claims handing ( worst case 500 days) then needs must, a better solution. You must notify death as required.

The probate process is lengthy and a somewhat expensive process. If release of funds requires grant of probate and LPR (e.g. balance over $100,000 from a bank) you must manage the delay. LPR is legal personal representative.

The recommendation is to put plans in place to manage the gap.

An Executor de son tort ( interim estate manager) can carry out essential financial actions to protect deceased estate assets. The person is responsible for any loss or wastage. However the failure to renew insurance or fix urgent maintenance problems can be serious. An example is an empty house with signs of neglect. “ de son tort” translates as “ your wrongful actions “. Thus you need to justify your actions.

This is the good faith version. It does not endorse smuggling every valuable asset into a car boot. My father was a doctor and too many times saw a family member “ guiding “ the hand of a non compos mentis patient to sign some document.

Hopefully an Attorney has been appointed under an EPOA who is aware of urgent matters . This is also the reason for simplifying assets and going to cash. You can make gifts inter vivos but best if you reflect that in your Will.

We have discussed jointly held bank accounts and the right of survivorship. These funds can be employed for deceased estate management processes. A dedicated joint account with a maintained reasonable operating balance can ease the strain.

Please understand that all personal legal authority of the deceased ceases on death. No action can be legally taken until a LPR is appointed. Your EPOA ceases to operate.

Nothing is legal until someone is appointed the LPR ( Executor or Administer) by grant of probate or LOA.

There is no need to wind down a successful business or liquidate assets and indeed no authority to do so. Some succession planning may be required to maintain the status quo. If matters are attended to in good faith and benefits the estate , that is your best defence. Hopefully you get good legal advice.

It can get complicated. I had a matter where a young couple worked in several countries and each time took out insurance death or disability. On the death of a partner , we had to obtain a grant of probate and then have it validated in many jurisdictions. It took months. As an international lawyer we eased the process. Sometimes there are foreign assets acquired or inherited.

It is somewhat melancholy to delve into these things but better planning can bridge the gap between expectation and sad reality. You are throwing a life ring to a heartbroken partner or relative.

Michael Goodman

Principal Avanti Lawyers

[email protected]

15/09/2024

SAFE FINANCIAL TRANSFERS

Tips and Tricks Comments:

1. The most common reason for transferring funds to another party is to purchase goods and services.

2. Try to transfer only using a PayPal account. There are other platforms but PayPal is often used. You have the benefit of protection against loss by fraud or unfit items.

3. If you must transfer funds without a secure platform try not to give out your credit card details. An electronic transfer is safer in terms of privacy.

4. Double check all numbers you use to transfer funds. As we all get older numbers are harder to read and sometimes are in fine print at the bottom for traders. If your customer base is seniors , heads up please use large font for financial payments. Indeed use suppliers that make payments easy and safe. Again PayPal ??

5. First payment use a tester of say $1000 ( or less) and wait for verification. Save the payment recipient details and then further payments are simple.

6. A new type of fraud is to receive a false invoice or email giving a fake account number. It is good practice to ring the recipient to verify account details.

7. Paper transactions using cheques are being phased out and we are all going electronic.

8. If anyone rings stating that he or she is from a bank financial institution or credit card company don’t provide details and ask to ring them back. That party may already have your credit card details but just need your one time code to make a payment.

9. If you have a credit card stored on your phone it can be hacked and used. However there are extra security steps including one time codes ( see point 8 )

It is important that you become familiar with electronic transfers. Get someone to take you through the steps or get a family member to help you for first time transactions or larger amounts.

Recently in Sydney someone lost his life savings by being tricked into transferring a house deposit to a bogus account posing as his law firm. A fake email with his law firm details was received by him with a fake account number.

Keep financially safe
Avantilaw

29/09/2022

DISPUTE RESOLUTION - COMMERCIAL

Over my many years of practising law including appearing in court as a Barrister, I have been saddened by the consequences of litigation which should have been avoided

I now observe a trend against neutral legal advice. My modus operandi has been to provide an advice on evidence, prospects and strategy at an early stage of the conflict.

This is neutral in that it is an objective assessment of the possible court decisions. Notions such as fairness or inequality or abuse are only context and in many cases cannot influence an evidence based court decision. It cannot do more than the system allows.

The trend is to become too close to your case and loose the objectivity you need to make a calm and measured decision

In family law matters so much evidence is personal recollection at the end of a bitter relationship. The legal process becomes the relief valve.

So I constantly call for early dispute resolution

The essence of dispute resolution is to objectively frame your own case with its evidence.

Then you consider the likely process of the litigation and discover the waterfall of possibilities. The outcome you seek must be achievable not simply hope without foundation.

There is no winner in litigation. The process itself grinds down the parties and drains all financial emotional and health resources. So your victory even if achieved comes at too high a price

I know that some cases cannot be fairly resolved but even then don’t stay in a fight you cannot win. Your outcome will be worse than your current position

Avanti Lawyers has many years experience in assessing a case with a neutral bias.

You can side step the adversarial process.

A mediation cannot frame your case and provide a full assessment.

Only when all relevant evidence is weighed and “facts” determined and the range of outcomes laid out, that willing parties can start to settle.

So the offer is being made to set you up for mediation by reviewing the evidence prospects and strategies of both parties with the aim of winnowing out the key issues and the range of outcomes that both parties can accept

My background has been commercial litigation and whilst I have too often been involved in family law matters that area is already well covered. That being said I would be happy to bring a commercial point of view

The essence of a commercial point of view is to consider the resources applied as being an investment to achieve an outcome. Then opportunity cost is included. An example of opportunity cost is the choice to set up an education fund using the monies about to be lost fighting over parent child bonding issues. The cost is the missed opportunity

Please let us know if we can help

[email protected]

01/08/2022

BUILDING PROBLEMS

We are experiencing some shocks in the building supply chain

The uncertainty is not helped by the QBCC politics

In the usual course of the building boom and bust cycle the construction companies operating on the fringe of their finances are first to go. They do not have the cash reserves to handle the financial shocks of supply chain disruptions or cost increases

So many clients are becoming owner builders which is a demanding and highly technical task. The building code and approved drawings are critical as is the essential form 16 for each licenced trade

The sunnies at the bottom of the chain rusk not being paid and not even for materials. The toolbox swapped for the law books

If you feel that things are going wrong or you are losing control of your project or your trust in your client or principal consider legal advice aimed at tightening up the contract management and fair pay for fair work. You may need better risk adverse strategies to ride out this cycle

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23/06/2022

HOME EQUITY ACCESS SCHEME (HEAS)

No equity no pension

The HEAS is a form of a reverse mortgage which is secured against the equity in your property and provides lump sum and cashflow to top up your pension

However the legal structure of senior accomodation may not qualify as “home equity “in the sense of adequate security for the loan

Many types of retirement villages and nursing homes have a legal structure being a personal right to occupy rather than real estate.

You are thus left out of this scheme.

In some cases there is 30% of value debt created in favour of the operator of the residential complex

So be aware in future planning that you may be best off on terra firma owning your home and reaping the benefit of the increasing value plus access to a 3.5% loan from the Commonwealth Government

This area of seniors law and the complexity of the documents are a challenge for those seniors who may need extra funds for the vintage golden years

Michael Goodman
Principal Avanti Lawyers
avantilaw.com.au

02/06/2022

INTERNATIONAL LAW

After a downturn in activity we are experiencing an increased demand for legal services dealing with international matters either personal or commercial

Please take the time to get expert professional advice before deciding on strategy or tactics for your international dealings

The world is becoming more uniform as common problems reach similar solutions with international data sharing

There are two fundamentals driving this process of uniformity namely to encourage foreign investment and also to improve the image for human rights. These are connected, as a fair and unbiased legal system with similar rights of international extradition eases concerns over a too heavy handed legal system. It may reduce the sovereign risks in the context of process assessment. In the usual travails of life “s..t happens” and you may be in an interview room at the local police. Your employer may not be the squeeky clean enterprise you assumed. Investor funds could experience handling losses and you are the “fall guy”. The new age crook is very sophisticated and operates at the high end in a very polished manner.

Beware of tax issues. As a common problem where the personal and commercial overlap, here is an example.

In some cases staff are relocated to a host country and personal legal matters can arise.

One common situation is where you travel to start work, complete your project and receive your pay and allowances. However a unilateral decision is made by your employer that you will be treated as an independent contractor. You face the issue of having carried on business in an overseas jurisdiction without being registered as a business and without filing a tax return. You must work through the issues and are exposed to a withholding tax which may take a large chunk out of your earnings. Your employer is now your adversary and you are in a foreign country with few resources. Lawyers can be very expensive for foreigners. A pro country attitude may be taken against a rich foreigner. This could extend to your own bank.

Good luck and good trading or working overseas but as a famous person once said “ trust but verify”.

Michael Goodman
International Legal Counsel
Principal
Avanti Lawyers
avantilaw.com.au