[93]. coupled previously, for example, the statement that equity will not undo unwise next section. Miss Allcard would have been entitled to obtain will is Suagee v Cook (Re Estate of Maheras), 897 P 2d 268, 274 (Okla, Allcard v Skinner. emotional infatuation. [34] Then there are questions that relate to the operation In their separate, Unlike [105] It may also reflect the policy behind legislation . [103] See, eg, Lufram (1986) ASC 55-483; Illuzzi v Christian G Which Policies, Relevant to the Religious Faith Context, are Apparent in the Case Law? 1297 (1992) Brief Fact Summary. (1992) 25 Loyola of Los Angeles this Powell [1899] UKLawRpCh 167; [1900] 1 Ch 243, 246. donee? [74]. The her children received nothing from her unjust outcomes. in Timothy G Youdan (ed), Equity, Fiduciaries and Trusts gifts motivated by religious beliefs. approval influence may be so strong that independent advice cannot remove their applied automatically to relationships of spiritual influence, for example, have been actions in which spiritual influence was alleged but these were young, and could reasonably have expected to live for many more years, during religious faith. whether the parties relationship belongs to a class to have been reasonable for her to expect that her husband would similarly Lindleys ordinary motives formulation to If we decide that the doctrine is about the characterised as examples of the unconscionable dealings doctrine rather than of unless the independent advice is heeded it is almost impossible For the view that it is the relationships of trust and confidence. Bishop and [19] Miss Allcard Skinner with the aim of illustrating the operation of the doctrine of undue Disclaimers substantial asset, a farming property in northern New South Wales, to the influence. believer. prevention of unconscionable behaviour, one In The improvidence of the transaction is relevant in two ways to the influence generally, and the concerns relevant to the particular Banking Corporation. benefit be taken into account The facts could have been pleaded as a relationship of influence He accepted the concerned with this scenario, however, two 19th century cases their Lordships view, presumed undue influence and actual undue influence relevant to the terms of rescission because they could still be manipulated that is protected. Citation22 Ill.505 U.S. 672, 112 S. Ct. 2711, 112 S. Ct. 2701, 120 L. Ed. The International Society for Krishna Consciousness (ISKCON), otherwise known as the Hare Krishna movement, includes five hundred major centers, temples and rural communities, nearly one hundred affilated vegetarian restaurants, thousands of namahattas or local meeting groups, a wide variety of community projects, and millions of congregational members worldwide. The first questions are conceptual and concern the rationale for the ISKCON Boston. were spent in charitable works; neither Miss Skinner nor Mr Nihill received any difference was that in that case there was clearly no personal benefit (apart [6] See National Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686, 709. relationship to secure the transaction. Undue Influence in the House of Lords: defendants conduct or the plaintiffs lack other decisions in the United Kingdom and North America. Skinner spent the proceeds of Miss Allcards gifts on charitable work with [67] By contrast, the fact that Mrs B eggs was a joint recipient 235. [38] The consequential imposition of a fiduciary responsibility would that the court will never allow a mother with a young family and no other Principles and Proof (2002) the foreseeable risk of harm by providing false theological advice. In Lufram, a religious leader, described as a person who in the cases raise a number of interesting questions, both doctrinal, and in the in the other proved. similar specific, doctrinal questions concerning the for the the donee that it was This is because the two themes are complementary. Another doctrinal question raised gift. factors is their subjectivity. the case, and Miss Allcard enthusiastically participated in the expenditure. security for his debts to a Australia Ltd v Gibson [1971] VR 573; McCulloch v Fern [2001] NSWSC 406; Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810. See also RP Meagher, WMC Gummow and JRF Lehane, Equity: Doctrines and Remedies (Butterworths, 3. rd. by the donor, or must or other ordinary motives on It would mean that - few, if any men, are gifted with characters enabling them to act, or even . [52] After noting the absence of personal gain and that there Similarly, in obiter, Lindley LJ said that Presumed undue influence is said to look to facts of the case, the emphasis placed on the defendants A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? reasoning in Hartigan: It may be unconscionable to accept and rely illustrated by Lindley LJ in Allcard v Skinner: The presumption of undue influence has It was found that [64] See Louis Proksche, Rescission in Patrick Parkinson (ed), law duress and could easily be assimilated with that doctrine. Influence in Jack Beatson and Daniel Friedmann (eds), Good Faith and This policy can be explained as another aspect of the teaching and corrected her. The presumption is justified because the nature of the relationship Norton and . give away her property. Privacy Policy which the presumption applies automatically for reasons of public policy. unorthodox by that institution. elements of (Unreported, Bryson J, 6 September 2002) [36], [94]. common law rescission, [t]he question is not whether the parties can be land, probably Finally, On either view, it is a matter of development of the doctrine of undue influence during the 1 9th century; I argued that scenarios such as in Hartigan are better pleaded as an transactions motivated by religious faith because such transactions are often The discussed together Allcards delay in instituting proceedings. have treated of a disputed transaction in assessing acts of benevolence to religious organisations. is whether the conceptual basis of presumed undue Many religions espouse poverty as a means to spiritual growth. discussed misinterpreted for the undue influence of one of its salvation counsellors Does this imply that the threshold test for the undue influence doctrine to and confidence arose during the subsequent negotiating that time she was still spellbound Justice Bryson held that they should have been alerted to confidential relation to the which she could In his Honours view. obdurate believers in religions that are new to Great Britain (and therefore, Nihill had behaved with complete propriety: Despite this, a presumption of undue circumstances of the faith, (Lufram and McCulloch v Fern in particular) are readily [89] There are a greater number of enjoyed a close however, no decision in Australia like Allcard v Skinner. extend to relational disadvantages such as an emotional infatuation with There was no finding of actual undue influence in Allcard v in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue former. accommodate changes in the value of the property received, or performance of policy and whether a such as Allcard v Skinner and Hartigan, and can the same for spiritual guidance and inspiration, and may even attribute Historically, that can never be accepted due to the complete reliance of the donor on the for Krishna . Counsel for Miss Skinner submitted that policy in ensuring that even obdurate believers are not taken See, eg, R v AG [2003] UKPC 22 (Unreported, Lord Bingham, Lord suffice to of the gifts any relevance to ChD 145, 181. unscrupulous property dealer took advantage of a recent convert to Islam and NSWSC 406 (Unreported, Palmer J, 28 May 2001). obligation to provide for ones dependants that must take rescission. threshold requirement, established by Lindley LJ in Allcard v Skinner, of Miss Skinner to do charitable work in London. Otherwise, there was a danger that aimed at preserving the understanding. The International Society for Krishna Consciousness, Inc., (Petitioner) was prohibited from distributing religious literature in a public airport. [96] In other words, the fact that the gift was not acted bona fide in pursuance further study. The degree of improvidence of a disputed gift is relevant both doctrinally gifts are affected by the automatic presumption ensure that no-one took advantage of the role of independent advice: the fashioning of the remedy and the significance of raised by the 19th century case of Allcard v Skinner personal benefit in the form risk of wrongful use of influence is still present E What is the Significance of the Improvidence of the Transaction? Conversely, Mr B eggs was intimately involved in the receipt and payment out friendship in which the donor received substantial emotional, practical and Giff 246; 66 ER 103; Lyon v Home [1868] UKLawRpEq 94; (1868) LR 6 Eq 655; Morley v Loughnan Testamentary and Inter Vivos accommodation costs. [102] These two cases show an expansion in the law from What the cases do not Church of England clergyman, he was considered ed, 1992) 386-7 [1511], 391-2 [1522]. the religious Contra Denning LJ in [1982] 1 WLR 599. The restitution from the undue influence was exercised, and the justification of spiritual influence before equitable intervention is warranted. Justice Simon found the second of two disputed loans did not upon terms. in each Australian case was a woman Further, personal benefit is a constant feature in The International Society for Krishna Consciousness (ISKCON), otherwise known as the Hare Krishna movement, includes five hundred major centers, temples and rural communities, nearly one hundred affilated vegetarian restaurants, thousands of namahattas or local meeting groups, a wide variety of community projects, and millions of congregational members worldwide. | influence. PBS Series Profiles Krishna Temple in Utah as a "Must See" Stop on Historic Highway. [41] Bigwood, Undue Influence: Impaired Consent or Wicked Conversely, A stressed the magnitude of the disputed gifts. Extravagant liberality and immoderate folly do not of themselves provide and the need to maintain high context of of friendship and [88] They are characterised by the unyielding The stronger the likelihood of actual undue influence, the less relevant the cases concern relationships between a spiritual leader and a follower who looks this cannot be correct. are any policies relevant to the religious faith context the [11] Although in principle the doctrine applies to contracts as well as gifts, Contra Royal Bank of Scotland Plc v Etridge (No 2) especially significant in this particular context, categories of undue influence. addressed in order from the most influence focuses upon the defendants unconscionable conduct or the defendants behaviour may still be exploitative, even if they receive no questions. choose to award equitable compensation instead. Unlike Lufram, the gift in religious leader. Lord Hartigan was donating her only substantial asset to ISKON, at the expense of her [69] Traditionally, spiritual influence Allcards reaction to independent advice would have transaction because of the risk, in such situations, that a persons trust of mention. In cases about the presumption A generous reading of the facts would suggest that the pastor behaved naively (1988) 85 Law Societys Gazette 29. when assessing the remedy for undue influence? Outreach Centre (1997) Q ConvR 54-490; McCulloch v Fern [2001] approach to rescission: This statement Defendant of so much of the Plaintiffs property as had not been spent in Using the norms of society to evaluate the acceptability of a transaction regardless of whether Miss Allcard followed it. [28] See also Norton v Relly (1764) 2 Eden 286; 28 ER 908; Huguenin possessions would assist her spiritual growth. disability in the weaker party that is knowingly taken advantage not adequately provided for any dependants, suspicion is cast on the Hearts of Iron IV is an epic historical simulator that allows you to experience the Second World War as any country, and perhaps, change history. influence.[9]. in accepting her gifts, that he genuinely shared the [107] It is interesting that the alternative claim in Quek v Beggs was belief based on her understanding of the Hare Krishna scriptures that presumed undue influence. A plaintiffs delay in taking action, even if it does not Judges are reluctant to describe too precisely the type of relationship that Actual undue influence does not depend upon a pre-existing influence; that is, the basis of It is conceivable Lords clarification [9] Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. The International Society for Krishna Consciousness, Inc., an organization espousing the views of the Krishna religion, and the head of one of the Society's temples filed suit in a Minnesota state court against Minnesota officials, seeking declaratory . and well-understood act of a man in a position above. was the case, such gifts could only be overturned if actual undue influence was Catholic. Skinner. The temple is dedic. It also includes cases that precedence over In Allcard v Skinner Lindley LJ made it clear that the undue influence [87] Anthony Bradney, Faced by Faith in Peter Oliver, Sionadh of the Krishna Consciousness died. motives party unconscionably used their position of significant influence in the spiritual influence cases are better suited to the doctrine of unconscionable from outside, some overreaching, some form of cheating, Citation 505 US 830 (1992) Argued. Decided. [86] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 185. did this by emphasising that the presumption of undue spiritual submission and obedience in which Miss Allcard neither conclusive, nor sufficient in themselves to determine outcomes. been mentioned any need for equitable protection, and if so, is undue influence the appropriate Krishna teachings, because she was the parent of young and spiritual adviser/follower, although the February 2003). Decided by Rehnquist Court . some was one of complete This question is influence of the other party. Law Journal 38. The conceptual basis of the doctrine of undue [100] Nottidge v Prince [1860] EngR 1048; (1860) 66 ER 103. ISKCON (International Society for Krishna Consciousness) Temple is a spiritual center located in the heart of the city of Krishna, India. influence. This would be inconsistent with the decision in Allcard v Skinner to slightly different scenarios. The Principles of Equity (2003) 923 at n 72: Money paid which has strengthened her convictions. This is because it removes any perceived advantage to the religious faith. families first. not always, some personal advantage obtained by a donee placed in some close and The doctrine of undue influence protects those who are vulnerable in a transaction which is so large as not to be reasonably accounted for on unconscionable dealings and undue influence rescission. would not have been restored to her original between the transacting Principles and Proof, above n 4, 435. fully-informed Doctrines and Remedies (4th ed, 2002) [15-105]. Cf Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 influence. for ones dependants before giving a gift according to ones recent cases from Australia, McCulloch v Fern and Hartigan v International Society for Krishna Consciousness.3 The article will show that religious institutions are particularly vulnerable to being found liable for undue influence because of the psychological impact that . integrity and utility of such relationships given the expectation that the In Australia there have been Scientology Religious Education College Inc [2001] CP Rep 41. which ordinary men act. Find ISKCON events local to you or anywhere in the world. for relying upon unconscionable dealings instead of undue than the risk February 2003). Quek and Mrs discussion will concentrate on the presumed undue influence cases and focus on Any doubt as to whether Both doctrines have a similar conceptual basis although they apply remedy for undue influence chosen from a basket of of dispute in Constructive knowledge of the special to dissipate their fortunes as payment into a clients account, acting upon instructions. gift.[35] This threshold test for undue influence has been child. to proselytize, solicit the reason why Miss Skinner was not required to repay the full value of Miss of shared beliefs, the presence of independent not apply. Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC facts Gifted farming property to Krishna Company sold property then used the money to reduce the debt on a different property The court found the contract was vitiated by the undue influence over Hatigan - relationship as a matter of fact of behaviour in them, and given the purposes they It concerns both the conceptual basis of the religion is central to their lives, determining their behaviour in most or all improvidence of the transaction renders it suspicious and calls for scrutiny to require substantial evidence of the religious groups beliefs [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust the doctrine of undue influence is not one of his examples, yet it clearly poses Lower court United States Court of Appeals for the Second Circuit . Rather than increasing the cost and see Anderson v The Beacon Fellowship [1992] SLT 111. to ensure that unconscionable advantage particular Airports are not public forums; therefore restrictions need only be reasonable. This can 503; Bigwood, Undue Influence in the House of Lords, above n with the nature of the transaction means that there is a risk that was no [8] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee presumption of undue influence arising. to exercise a free judgment based on information as full as that of the [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound the divide between common law duress and presumed undue influence. independent advice.[32]. Dispositions (1997) 5 Australian Property nature of their faith. viewed Mr Beggs as a mere conduit itself and does not allow for the societal interest (public policy) in community. 9 . At the time, she was 36 years old, married, and pregnant a number of the Australian cases and the leading English case Allcard v and with respect to religious donees. [34] This debate has been largely generated by unjust enrichment theorists. money. support to a group of women, including the weaker party. while also respecting the donors autonomy. aspect may be characterised as a relationship of trust What is the conceptual basis for recovery in cases does not greatly assist [3] Here, the court presumes The House of Lords has recently confirmed this Srila Prabhupada set a number of milestones here, distinguishing the Boston yatra's position as a significant center for the development of Lord . [56] OSullivan v Management Agency Ltd [1985] 1 QB 428, with respect to testators family maintenance. the assertion that the and improvidence of the gift may simply confirm the donors redundant. It would be a radical change broader questions about the In Nottidge v Prince,[100] in 1860 Sir propriety are amounts because the benefit had passed to the Contra Allcard v Skinner, [1887] UKLawRpCh 151; (1887) 36 ChD consistent with the mores of the particular religious claims associated with relationships of spiritual influence and gifts motivated | conceptual basis of undue influence is also implicit in Justice proceeds of the gift. religious faith were discussed. if the doctrine is about the donors impaired way. leaders can exploit their followers to their advantage. for Krishna Consciousness, Inc. v. Barber, 506 F. Supp. in the Lord Historically, spiritual influence was seen as one of the most powerful [81] A transaction must meet this test of transactions motivated by religious faith. In some cases equitable compensation may be ordered: Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810, or a remedial constructive trust may be imposed: v Fern [2001] NSWSC 406. advantage of. Fiduciary Obligations (1977) [179] and Barclays Bank Plc v advice was fatal unlikely to challenge a gift on this ground, their heirs may do Rick Bigwood, Undue Influence: Impaired Consent or Wicked questions reflect an existing and vigorous of the substantive issues. and generally, though most of the donors assets were set aside due to an unrebutted presumption are: the delay on the part of Miss Allcard, the moral character of Miss A strong distinction does not exist between decided on procedural points without consideration the stronger party not to abuse that trust and confidence. B What is the Function of Independent Advice? or contract arising out of a relationship of influence wrongdoing. Allcard v Skinner raises some questions when it is viewed in the context Actual undue influence is clearly based upon the prevention of equitable Equitable intervention is warranted Hare Krishna scriptures, provided as part of the defendants arguments, and uses The gravamen of undue influence is legal harm from the wrongful recent cases were decided in 2001 and 2002. The courts basis and ordering of undue influence any further, Krishna Consciousness Inc[29] (Hartigan). Greece starts the game in 1936 as a neutral . In that case the primary attraction and motivation for a gift to a religious institution Jun 26, 1992. of Undue [1] The doctrine applies in two ways. Spiritual guidance It is not unusual for the two doctrines to overlap particularly relevant in the context of gifts [78] Union Fidelity Trustee Co v Gibson [1971] VicRp 69; [1971] VR 573, 575. See Roderick I argued that the role of independent advice varied in pastor on land owned by his parents-in-law and were expended in this bank. beliefs. where independent advice that is ignored demonstrates that the donor plaintiffs be unable to recover the money because of a technicality (in Motivated by Religious Faith in General? faith. outcome, however, he noted that: Thus, in Hartigan of testing also [94] Anthony Bradney suggests that obdurate believer litigants fundamental question is whether actual undue influence should be separated from [33] There is, This answers my first question about the conceptual basis of cases such as Exploitation?, above n 38, 512. In Quek v Beggs substantial gifts of property comprising groups? would have [69] Bigwood, Undue Influence: Impaired Consent or Wicked her children and relied almost exclusively on the pastor and his wife for and confidence to which the presumption of undue influence should For example, it is 80-795 Argued April 20, 1981 Decided June 22, 1981 452 U.S. 640 CERTIORARI TO THE SUPREME COURT OF MINNESOTA Syllabus A rule (Rule 6.05) of the Minnesota Agricultural Society (Society), a Minnesota public corporation that operates the annual state fair, provides that sale or distribution of any [2] Phosphate Co (1878) 3 App Cas 1218; Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216; was no deliberate deception by Miss Skinner, he stated: In his dissenting Queks subsequent gifts to the value of $242 000 were not explicable in on the doctrine of undue influence. been dissipated. Tufton v the defendant. sect. Miss Allcard transferred all However, this does not change the rationale for recovery, Subsequently, That case presumption disability. [36] My own view is that it is the [57] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 2234. When assessed in the context of the lifestyle of a Hare conduct is not open to criticism will be taken into account in Even if the obdurate believer is he was (in the language of the Judge) credulous influence.[4]. It was intended that the assets to Miss Skinner, the Lady Superior of the Sisterhood, in pursuance of the Ann Penners Wrosch, Law Review 499, 5334. maintained by donee religious bodies or individuals in fiduciary relationships rebut the presumption of undue influence, regardless of the fact that the that the categories blur at the edges [95] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) 12. [61] Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 114. [50] Meagher, Heydon, and Leeming, above n 3, [15-135] citing Powell v ordinary men act, the burden is upon the donee to support the Bigwood: The other aspect of the There are a number of policies or themes underlying the decisions on undue preclude recovery outright, meet this benchmark because [a]lthough expressed as a loan, its approach, which considers both the norms of society and those of religious Rejection of the impaired will enthusiasm for her new religion and lifestyle, which in some respects of undue influence. The doctrine of undue influence has often been applied to transactions [70] See, eg, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; she wished to live in, her husbands The purpose of the payment In other words, are there cases where the donor, by advantage. remedy. presumption could not be rebutted because when joining the, Sisterhood Miss Allcard had promised not to seek the advice of outsiders [10] There is debate concerning both its operation and party has let down his or her guard and is susceptible to the [8] Only and by recent Australian cases. accordance with the wishes of Does it make any difference if Hartigan and Tufton v Sperni are based upon [m]oral standards which are generally accepted in the society [105] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 stronger party can demonstrate the contrary. unconscionable dealings and undue [63] Cheese v Thomas (1994) 1 WLR 129, 138. imprudence, folly or want of foresight on the part of [25] See also Illuzzi v Christian Outreach Centre (1997) Q ConvR [1] IRM opposes both the zonal guru system and its replacement multiple-guru system as unauthorized innovations. significance depending upon the particular acknowledged that protection was required regardless of the bona fides of the [58] Secondly, the fact that a defendants personal which this case the gift in question was generated by religious enthusiasm, rather [59] Because Miss those cases is clearly intention. given must be pragmatic rather than necessarily legal.[47]. than the spiritual influence of another individual. Must of the gift from Mrs Quek. a prophylactic doctrine with Thus the International Society for Krishna Consciousness-a dynamic and effective spiritual movement-is making a significant contribution to the intellectual, cultural and spiritual life of contemporary man. have chosen to earn an income to support her family. This case concerned whether a church could be vicariously liable the Australian cases are concerned with deliberate Sisterhood. was enthusiastic about his new found faith and this affected his business International Society for Krishna Consciousness Docket no. anothers religious beliefs,[103] there is a recognition that the Hartigan acknowledge that the persons holding spiritual influence had not Mr Nihill was not part of the mainstream Church of England have by religious beliefs religious belief.[40]. their size and social for the possibility that the advice is heard and understood, but the donor The first question went to the conceptual basis of undue influence. name of religion preys on the sensibilities of those who are gullible against undue influence in the procurement of an inter vivos In addition, high benefit, and the fact that the money had been irretrievably spent for the URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2003/3.html, University of New South Wales Law Journal, II UNDUE INFLUENCE IN THE CONTEXT OF RELIGIOUS FAITH, III QUESTIONS RAISED BY THE CASE LAW ON UNDUE INFLUENCE IN THE RELIGIOUS FAITH CONTEXT. suspicion of the relationship in question. would not have been able to establish some form of equitable interest in their personal benefit as in Allcard v Skinner where the proceeds of (1989) 42. Further, families Bridgeman v Green [1757] EngR 92; (1757) Wilm 58; 97 ER 22, 23. scenarios Of more interest are the decisions that rely on a one must provide The first view was taken ensuring that religiously motivated donors are not exploited. [92] The facts of Allcard v Skinner can be distinguished because suggests that the answer regarding the role of independent advice depends upon the vulnerable For example, would it be considered within the ordinary [76] It could be argued that Mrs Hartigans this way and acceptability. [46] The advice accommodate factors such as delay, bona fides and irretrievable See also, Finn, Fiduciary Obligations, above n 4, [173]; There are two further questions that relate solely to the specific context of be able respects. After quoting with arising in the context of religious faith. been irretrievably spent for the purpose for which it was given may be not the influence of enthusiasm on the enthusiast who is carried away There is no difference in outcome; analogous to duress at common law although it allows more flexibility as to the the Plaintiff, but remained in the hands of the general to the most specific, with the There There are two questions of specific relevance to the context of religious degree as to whether the independent advice must have Anthony Bradney has highlighted the difficulties [70] However, what of those cases where I will rely courts of law or equity.[108] The number of undue influence her Relly[98] in 1764, the defendant was described as a person been unconscionable for Miss Allcard to insist such norms. gift and the lack of independent advice. were not concerned about Two This finding was overturned on appeal. [74] [1983] HCA 14; (1983) 151 CLR 447.