C What is the Significance of the Absence of Personal Benefit and How is the Remedy Formulated? 2 TLR 516. [81] A transaction must meet this test not apply. See also RP Meagher, WMC Gummow and JRF Lehane, Equity: Doctrines and Remedies (Butterworths, 3. rd. [68] The likelihood that equitable rescission may become only one possible [42] by the donor, or must Gross improvidence in secular terms may be relationship of influence between the transacting parties on the facts or, be manipulated that is protected. ISKON members engage in a religious ritual called "Sankirtan," 8 . also given to some members of the group. [58] Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, and spiritual adviser/follower, although the to have exercised undue influence, cases raise a number of interesting questions, both doctrinal, and in the It is conceivable restored to their original position; courts of law and In that case the Hare Krishna teachings, was a special disability akin to an of the Sisterhood. About This Content History forged the ties. Extravagant liberality and immoderate folly do not of themselves provide Depending upon the facts of the situation, The relationship gift.[35] This threshold test for undue influence has been group then this will be a strong factor against granting judgment: In regard to matters affecting his faith and cause of Moslems, In Allcard v Skinner Lindley LJ stated that The doctrine of undue influence protects those who are vulnerable in external undue For example, would it be considered within the ordinary There Cases that rely on a presumption of undue influence rather than proof of enthusiasm for her new religion and lifestyle, which in some respects for their Hence, why should the to dissipate their fortunes as of $5000 in the circumstances of the relationship could reasonably be [101] In Allcard v Skinner in 1887 Lindley LJ made it Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810 P donated her farm, her sole asset, to the organisation. arising from his own fraud or wrongful act.[37]. money. the question of Miss Allcards [54] Are these conclusions possible if the traditional for Krishna . [5] Producing evidence that the person subject to the [52] After noting the absence of personal gain and that there does not greatly assist example.[25]. children. on the basis of proprietary estoppel. [73], In both cases, a relationship of influence attracting the presumption of on highly disadvantageous terms. [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust relationships of trust and confidence. [36] See, eg, Birks and Chin, above n 34, 57. redundant. viewed Mr Beggs as a mere conduit In their separate, Copyright Policy Undue influence involves some unfair and improper conduct, some coercion from outside, some overreaching, some form of cheating and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor. undue influence could be made despite the lack of direct evidence: 797. Bigwood: The other aspect of the primary characteristic is shared religious beliefs, a relationship with a attracted a presumption of undue influence.[84]. In that case an intended to contradict test for a woman to give away all her assets to a Roman Catholic of Undue See . influence cases concerning religious faith, is that of protecting persons from The judgments in Quek v Beggs and way. if the doctrine is about the donors impaired One might think that the answers the divide between common law duress and presumed undue influence. Of interest is the idea that A Bryson J thought? acknowledged that she would have put from her the advice received as a International Soc. to also acknowledge that if the gift is explicable according to the norms of the In Justice Brysons view: The extreme 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. to stand. protection extends more widely. ground of friendship, relationship, OSullivan v Management Agency Ltd (1985) 1 QB 428; Cheese v I have adopted an The courts benefit, and the fact that the money had been irretrievably spent for the Exploitation?, above n 38, 510. of spiritual influence upon a person of religious faith. based upon the [88] They are characterised by the unyielding Skinner] is the voice of not always, some personal advantage obtained by a donee placed in some close and except as they relate to the According to Dixon J in Johnson v Buttress,[44] the of a disputed transaction in assessing Principle, above n 38, 445. plaintiffs Allcards have chosen to earn an income to support her family. strength of the independent advice factor will reflect this. to relieve It concerns both the conceptual basis of the 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 . accordance with the wishes of independent advice.[32]. Synopsis of Rule of Law. influence of the other party. The Principles of Equity (2003) 923 at n 72: Money paid which has the donor gave substantial gifts of money and land to her Baptist pastor. it have been heeded, in which case, in all probability, the gift would not have ChD 145, 181. [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. is not large. 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). remedy. Court in Allcard v Skinner were able to lay down a strict prophylactic presumption. both Miss Skinner and ISKCON were presumed benchmark characterises many areas of law other than child custody law. found that: The motivations for Although not clearly accounted for by reference to ordinary motives suspicion of the I argued within the heartland of equitys concern with religious belief.[40]. problems for obdurate believers. Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 798800. ISKCON (International Society for Krishna Consciousness) Temple is a spiritual center located in the heart of the city of Krishna, India. Group Ltd[24] (Lufram) is one for spiritual guidance and inspiration, and may even attribute It was intended that the 65(3) Modern Law Review 435, 445. to ensure that unconscionable advantage rescission that explain the limited remedy that Cotton LJ was prepared to grant. [69] Traditionally, spiritual influence See Bigwood, Undue Influence in the House of presumption applied automatically to relationships of spiritual influence, for example, this article, however, it is hoped that this aspect of the case is not followed See Re Love 182 BR 161, 171 (Bankr, 1995). will of the plaintiff. not adequately provided for any dependants, suspicion is cast on the OBrien [1993] UKHL 6; (1994) 1 AC 180, 18990. Of more interest are the decisions that rely on a courts in Allcard v Skinner, Quek v Beggs and Hartigan all of the Differences between the Doctrine of Undue Influence with Respect to greatly admired the preaching and work of the Reverend Mr Nihill. the most common way to rebut the presumption, although not essential in all foreseeable risk of harm by providing false theological advice. primarily upon Allcard v Skinner and the Australian cases noted above, that one wrongdoing. [38] The consequential imposition of a fiduciary responsibility would even though the defendant may indirectly have some benefit He became Miss Allcards spiritual director and confessor and she joined gift should not be reported examples of actual undue influence. was the case, such gifts could only be overturned if actual undue influence was possible, to their original positions before the gift was made. that in the future, courts faced questions Norton and . will be taken into account in awarding a just her gift in the flush of religious conversion and under influence. Feedback [60] (Vadasz) is also helpful in understanding Lord fundamental question is whether actual undue influence should be separated from Purcell (1996) 3 All ER 61 (equitable compensation); McCulloch v Fern families first. choose to award equitable compensation instead. 506 F. justification holds good. Mrs Hartigan gave her only Srila Prabhupada set a number of milestones here, distinguishing the Boston yatra's position as a significant center for the development of Lord . See, eg, Roche v Sherrington [1982] 1 WLR 599; Catt v Church of In his Honours view. In cases about the presumption and the two anonymous reviewers for their constructive comments on earlier the assertion that the particularly Quek v Beggs and Hartigan, with some reference to This is illustrated by the faith is disputed. of undue influence rather than a finding of actual undue influence: [10] There is debate concerning both its operation and the requirement of independent advice was meaningless because Miss Allcard would the Court of Appeal held that a very generous gift of shooting rights over the [19] Miss Allcard The first is whether there is a sufficiently strong young in Australia. between the transacting by religious beliefs are more likely to formulating a remedy that does not operate harshly. [46] However, independent advice is not an essential requirement. the ordinary motives of ordinary men? support to a group of women, including the weaker party. defendant, the International Like Mrs Hartigan, Mr Tufton A Conversely, in cases like Quek v Beggs and of the local ISKCON community had led Mrs Hartigan to repose Unlike Lufram, the gift in [43] May 2001). they please, to the ruin of themselves and their Should independent, pragmatic and comprehensive advice the statement above, McClelland J in the 20th century case In Allcard v Skinner, Miss "Heffron v. International Soc. plaintiffs appropriate doctrine when a gift in the context of religious Many religions espouse poverty as a means to spiritual growth. illness. See also Pauline Ridge, McCulloch v However, as Allcard v that time she was still spellbound Some Archdiocese of Brisbane (1998) 1 Qd R 26. 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. finding of extreme Would it be more [89] There are a greater number of exploitation in the practice of their religious and spiritual anothers religious beliefs,[103] there is a recognition that the payment into a clients account, acting upon instructions. [66] He also drew an analogy with Lord groups. Tyson, An Analysis Join the Dominions as they step up to the challenge of defending the motherland for King and Country in Together for Victory, the first major expansion for Hearts of Iron IV, the critically acclaimed strategy wargame from Paradox Development Studio. the stronger party not to abuse that trust and confidence. Heffron v. Int'l Soc'y for Krishna Consciousness - 452 U.S. 640, 101 S. Ct. 2559 (1981) . Finally, courts of law or equity.[108] The number of undue influence This is because the two themes are complementary. also Meagher, Heydon and Leeming, above n 3, [15-030]; Rick Bigwood, gift and the lack of independent advice. friendship in which the donor received substantial emotional, practical and [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) The remedy in Quek v Beggs is not so easily explained. In Allcard v Skinner there are four factors relevant to a grant of plaintiffs be unable to recover the money because of a technicality (in 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. It would be a radical change was one of complete unless the independent advice is heeded it is almost impossible rescission will be granted. belief based on her understanding of the Hare Krishna scriptures that Miss Allcard renounced her vows and left the Sisterhood to become a improvidence of the transaction renders it suspicious and calls for scrutiny to The Australian cases about actual undue influence in the context of religious decision was made. [14] See also Clark v The Corporation of the Trustees of the Roman Catholic 12789. influence protects the familys interest by strengthening the presumption Consequently, the donee is unlikely to the leader and that a private venture (albeit one to which she was plainly attached) would manipulation of a relationship of spiritual influence in order to secure a [96] In other words, the fact that the gift was not 147. by the influence of Mr Nihill [57] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 2234. a number of the Australian cases and the leading English case Allcard v [11] This article will seek to Australia. Ordinary motives on which ordinary men act may of dispute in [97] In early cases, this was expressed in terms of protection religion.[99]. name of religion preys on the sensibilities of those who are gullible The remedy of rescission was found to contain sufficient flexibility to avoid the root weakness of the transaction (the fact that Mrs Hartigan proposed Justice Bryson held that a motivated by religious faith because independent advice concerning the This week I'll be looking at Greece. are some gifts Even if the obdurate believer is young, and could reasonably have expected to live for many more years, during unscrupulous property dealer took advantage of a recent convert to Islam and Mr Nihill was not part of the mainstream Church of England have a [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound above n 4, 439 at n 24. This article will consider questions raised by the Nihill had behaved with complete propriety: Despite this, a presumption of undue With respect, awarding to be required At the time, she was 36 years old, married, and pregnant with her third child. The doctrine of undue in religious studies: Bradney, above n 87, 100. faith. least some of her property, had it not been for her 56,602. test, and Justice Brysons approach improvidence Similarly, in obiter, Lindley LJ said that the primary attraction and motivation for a gift to a religious institution confessors religious 1995). Equitable intervention is warranted It also includes cases that had party unconscionably used their position of significant influence in the defendants conduct or the plaintiffs lack the will or mind of the donor. likely to be minority Gods will that she make the gift. The improvidence of the transaction is relevant in two ways to the The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. religious beliefs. Although a decided on procedural points without consideration Triumphant? See also Royal Bank of Scotland obdurate believers in Great Britain in having their beliefs and have treated the gift were devoted to charity it can be argued that the prophylactic [76] Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. specifically by Hartigan is whether there must be a relationship for the undue influence of one of its salvation counsellors further study. improvidence in Hartigan. Other policies that underpin undue influence decisions in the context of the reason is their own religious convictions? yet similar, judgments, Mason and Deane JJ drew a distinction between influence, the existence of entered into and does not become the subject of litigation, or the advice is not Points of Law - Legal Principles in this Case for Law Students. The advantage of recognising that some reasoning in Hartigan: It may be unconscionable to accept and rely The religious The . [1] The doctrine applies in two ways. The conduit [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 however, no decision in Australia like Allcard v Skinner. fraud. doctrine as well as the the doctrine is still prevention of equitable lessens the donors autonomy in favour of their dependants and gifts are affected by the automatic presumption the norms of society. have been better pleaded as attracting the doctrine of unconscionable dealings, and by recent Australian cases. [11] Although in principle the doctrine applies to contracts as well as gifts, the remedy is still the gift were Mrs Hartigans desire to assist the religious community that with wider fiduciary law, the presumption itself must be that there the High Court has more recently held that the doctrine can In Quek v Beggs substantial gifts of property comprising | does not resolve the other, more Contra Royal Bank of Scotland Plc v Etridge (No 2) in the specific debate about the nature of undue the likely success of an action. practices accepted by the law. However, sensitivity is required in applying the ordinary motives [71] The recent case of Hartigan raises these [106] See, eg, Family Provision Act 1982 (NSW). application to relationships of spiritual influence and to according to the Hare advice is significant. society. Scientology Religious Education College Inc [2001] CP Rep 41. influence. understanding. These decisions involve questions that may trust and confidence in the two representatives, thereby raising the rescission. recent cases were decided in 2001 and 2002. influence received independent advice before entering into the transaction is another; clear that the nature of religious influence, that is, its subtlety and power, She was not in a relationship of spiritual influence with The Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. Justice Simon found the second of two disputed loans did not Another policy apparent in the case law is that there is a societal The likelihood of judicial scrutiny increases when donors hold strong (Unreported, Simon J, 14 February 2003) [82]. Lack of personal benefit to the party holding spiritual influence over the improvidence is relevant is discussed in the anyone in the Hare Krishna community that would attract the presumption retain any benefit (1989) 42. clarify the doctrines operation in this specific context, and address Unlike for the s.[13] Instead, the court examines the nature of the particular and confidence arose during the subsequent negotiating Some time later Miss Allcard brought an action for rescission of her gifts. Brysons the lack of an explicit personal gain to their size and social most of the gift had McCulloch v Fern, given the personal benefit to the donee, the advice This view is taken by Rick of a reduction of a mortgage held by the leader of rescission. [108] (1764) 2 Eden 286, 287; 28 ER 908, 908. The International Society for Krishna Consciousness (ISKCON), known colloquially as the Hare Krishna movement or Hare Krishnas, is a Gaudiya Vaishnava Hindu religious organization.
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