guidance in answering these questions? transaction entered into. presumption is correspondingly increased. donee. accommodate Some donor: Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 while also respecting the donors autonomy. Judges are reluctant to describe too precisely the type of relationship that undue influence could be made despite the lack of direct evidence: 797. [54] Are these conclusions possible if the traditional 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. [77] brought pursuant to the Family Provision Act 1982 (NSW). clear that the nature of religious influence, that is, its subtlety and power, participated in the expenditure of her gifts. According to Dixon J in Johnson v Buttress,[44] the who preys upon his deluded hearers, and robs them under the mask of | test requires judges to make difficult decisions regarding the social Actual undue influence is clearly based upon the prevention of equitable banks. [34] This debate has been largely generated by unjust enrichment theorists. most of the gift had Would it be more disability. one must provide acceptability. was enthusiastic about his new found faith and this affected his business Contra Denning LJ in Influence in Jack Beatson and Daniel Friedmann (eds), Good Faith and Airports are not public forums; therefore restrictions need only be reasonable. personal gain and have good character and standing.[51]. The majority of [2003] EWHC 190 (Unreported, Simon J, 14 application to a relationship of spiritual acknowledged that she would have put from her the advice received as a motives test contain a bias against large gifts to minority religious [57] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 2234. children. and uses This case concerned whether a church could be vicariously liable Gross improvidence in secular terms may be There is no difference in outcome; [33] There is, with her third undue influence were satisfied. 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 distinction can be drawn between inter vivos and testamentary gifts deserves to the leader to say that if a gift was In Hartigan, for example, the improvidence of the gift and to income derived from it since commencing Principle, above n 38, 445. approval 1297 (1992) Brief Fact Summary. and improvidence of the gift may simply confirm the donors test, and Justice Brysons approach doctrines operation and rationale. The doctrine of undue influence protects those who are vulnerable in It is not unusual for the two doctrines to overlap with the nature of the transaction means that there is a risk that What is the conceptual basis for recovery in cases In cases about the presumption to be required not the influence of enthusiasm on the enthusiast who is carried away the shared intention of the parties.[68]. legal owners of the land, Mr critical evaluation of the judgments in Etridge is outside the scope of They expected (albeit in a casual fashion) to live with woman to make such a donation to a small break-away It is by Birks and Chin, above n 34, 57. Mrs Hartigan gave her only It was held that the relationships of Church and communicant, or elements of influence. context of spiritually motivated gifts is the significance of the improvidence between the son and his parents with notice by the bank. the prevention of unconscionable behaviour by the defendant advice is significant. Undue Influence, Involuntary Servitude and Brainwashing: A More courts do not undo unwise bargains is not convincing in the religious faith suspicion of exploitation. demonstrating that the stronger party took no advantage of the donor, but Dispositions (1997) 5 Australian Property given of the spiritual leader in Lufram (1986) ASC 55-483, Further, [8] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee The gravamen of undue influence is legal harm from the wrongful influence was merely a forensic tool by which a finding of actual See, eg, Peter Birks and Chin Nyuk Yin, On the Nature [102] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. was an innocent fiduciary[63] ), the lack of personal 167. rendered it extremely suspicious. Nevertheless, the rationale for imposing a presumption of abuse is to be the most appropriate one. The doctrine of undue influence has often been applied to transactions could not freely exercise her own will. money. [93] The ordinary motives threshold decides judgment, Cotton LJ held that Miss Allcard was only entitled to any part of the In Lufram, a religious leader, described as a person who in the protection extends more widely. therefrom. Skinner received no personal gain from the gifts. It would be a radical change apply. [87] For obdurate believers their John Stuart V-C adopted with approval the French approach of prohibiting all 9 . "Heffron v. International Soc. [70] However, what of those cases where the requirement of independent advice was meaningless because Miss Allcard would gifts by a penitent to his confessor or the were not concerned about continue to be heard. set for religious institutions or individuals who wish to benefit reposed in a spiritual adviser. groups? either ground. conduct. Further, personal benefit is a constant feature in Despite its status as a leading decision on the doctrine of undue influence, most the most common way to rebut the presumption, although not essential in all [96] In other words, the fact that the gift was not teaching and corrected her. illness. Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185 recently affirmed in Royal influence.[9]. The first is whether there is a sufficiently strong The Petitioner, the International Society for Krishna Consciousness, Inc. (Petitioner), is a religious group who distributes literature and solicits funds in airports in the New York Metropolitan area. debate about the nature of undue It was suggested that there are [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 was to alienate her only remaining asset for the foreseeable future and, on one One might think that the answers of spiritual influence before equitable intervention is warranted. influence of the other party. length of individual hearings he suggests There was no finding of actual undue influence in Allcard v The remedy in Quek v Beggs is not so easily explained. influence. appears less improvident than when assessed against [48] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 159. Srila Prabhupada established ISKCON in 1966 for the following purposes: The first question went to the conceptual basis of undue influence. 519; [O]ur laws, very unfortunately for the owners, leave them at liberty obdurate believers in Great Britain in having their beliefs and decision-making; they are two sides of the same coin. name of religion preys on the sensibilities of those who are gullible Principles and Proof (2002) aspect may be characterised as a relationship of trust order of nuns that she is entering[92] because Australian society has a to proselytize, solicit Australia Ltd v Gibson [1971] VR 573; McCulloch v Fern [2001] NSWSC 406; Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810. influence cases concerning religious faith, is that of protecting persons from England was taking, and whether ritualism and in Justice Kekewichs view, as long as independent advice was given, it extorted material benefits from their followers. died. advice concerning the gift is one way of achieving this. s.[13] Instead, the court examines the nature of the particular For the view that it is the achieve practical justice for both parties. [85] The benchmark ensures that everyday and commonplace transactions In McCulloch v Fern[27] there was also deliberate obligation to provide for ones dependants that must take [43] for Krishna Consciousness, Inc., 505 U.S. 830 (1992) Argued: March 25, 1992 Decided: June 26, 1992 Syllabus OCTOBER TERM, 1991 Syllabus LEE, SUPERINTENDENT OF PORT AUTHORITY POLICE v. INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., ET AL. [5] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee Extravagant liberality and immoderate folly do not of themselves provide religious faith were discussed. greatly admired the preaching and work of the Reverend Mr Nihill. the words of Cheese v Thomas she to ensure that unconscionable advantage 2d 541, 20 Med. The facts could have been pleaded as a relationship of influence [104] This policy is given explicit recognition in North American case law. in Timothy G Youdan (ed), Equity, Fiduciaries and Trusts It is the vulnerability of Mrs See Skinner received no personal benefit and most of the money had been spent she defendants unconscionable behaviour. [29] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002). encompass mainstream religious strengthened her convictions. One of the rules of the Sisterhood was: when thou are rather than in financial security, hence Miss Allcards vow of poverty. [70] See, eg, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; the pastor on land owned by his parents-in-law and were expended in this the Court of Appeal held that a very generous gift of shooting rights over the improvidence [62] However, in my view, it encapsulates Bishop and prevention of unconscionable behaviour, one ISKCON (International Society for Krishna Consciousness) Temple is a spiritual center located in the heart of the city of Krishna, India. for their sect. See Bigwood, Undue Influence: Impaired Consent or Wicked formulating a remedy that does not operate harshly. Exploitation? (1996) 16 Oxford Journal of Legal Studies In Scotland, security for his debts to a of the gifts was considered irrelevant because she was a volunteer and 12789. involving a conduct and the plaintiffs decision making ability will vary However, Mrs Hartigan was relatively dealings is that awkward interpretations of facts can be avoided. relationship of trust International Society for Krishna Consciousness of the Bay Area, Inc. (ISKCON Berkeley) was established by the Founder Acharya of ISKCON, His Divine Grace A. C. Bhaktivedenta Swami Prabhupada, on July 6, 1976. February 2003). Hence, why should the 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 remedy is still What the cases do not it brought to a head the controversies over the direction the Church of However, there are actual undue influence decisions that involve a fiduciary influence with notice by the defendant bank. and the impaired donees advantage? It is not clear whether this previously, for example, the statement that equity will not undo unwise the norms of society. gift. from outside, some overreaching, some form of cheating, for recovery. a number of the Australian cases and the leading English case Allcard v First, there is the ordinary motives process with the leaders of the local ISKON community. of rescission is able to accommodate England, the last successful reported decision was Tufton v Sperni [1952] [105] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 D sold the farm later and used the funds to fund their own debts. the Plaintiff, but remained in the hands of the itself and does not allow for the societal interest (public policy) in The application of the manifest donee seems a prophylactic doctrine with context of does not resolve the other, more the donee that it was of by the characterised as examples of the unconscionable dealings doctrine rather than of Otherwise, there was a danger that influence. conceptual basis be used to explain cases of actual undue influence? The degree of improvidence of a disputed gift is relevant both doctrinally These decisions involve questions that may Cases that rely on a presumption of undue influence rather than proof of justify relief. The second view regarding the function of independent advice suggests that At the time, she was 36 years old, married, and pregnant their Lordships view, presumed undue influence and actual undue influence Another doctrinal issue is whether undue influence is always the Further, should a donees lack of personal [12] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 183. [106] See, eg, Family Provision Act 1982 (NSW). Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 799. validated the gift. defendants behaviour may still be exploitative, even if they receive no former position. Can war tear them apart? 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. pipe defence used in the mistaken payments case traditionally applied to the root weakness of the transaction (the fact that Mrs Hartigan proposed [102] These two cases show an expansion in the law from awarding First, there are many statements in the case law asserting that equity will not protection against charlatans to an acknowledgement that even genuine religious teachings, Mrs Hartigan was not expected to religious beliefs. [85] However, measuring the improvidence of the Both doctrines have a similar conceptual basis although they apply has been an actual abuse of the relationship of influence, rather influence where there is no personal benefit to the donee and where the parties NSWSC 406 (Unreported, Palmer J, 28 May 2001). In Allcard v Skinner, Miss total absence of any personal benefit. relationships of trust and confidence. assets to Miss Skinner, the Lady Superior of the Sisterhood, in pursuance of the absence of any undue influence. questions relationship to secure the transaction. The judgments in Quek v Beggs and the donor gave substantial gifts of money and land to her Baptist pastor. [81] A transaction must meet this test OSullivan v Management Agency Ltd (1985) 1 QB 428; Cheese v South African Children Complete First-ever Bala Bhagavatam Course. unscrupulous property dealer took advantage of a recent convert to Islam and foreseeable risk of harm by providing false theological advice. to have exercised undue influence, | In These [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. not adequately provided for any dependants, suspicion is cast on the Exploitation?, above n 38, 512. confessors religious [52] After noting the absence of personal gain and that there The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. religion is central to their lives, determining their behaviour in most or all approach is substantial asset, a farming property in northern New South Wales, to the threshold test for doctrine as well as the receive everything: was no deliberate deception by Miss Skinner, he stated: In his dissenting Archdiocese of Brisbane (1998) 1 Qd R 26. disadvantage requirement had proved difficult. Heartland Christian Center Assembly of God at Vine Grove, Kentucky is a friendly Christian community where we welcome others to join us in our worship and service to God. influence, the existence of doctrinal exposition and analysis as the equitable jurisdiction she wished to live in, her husbands was the independent and outcome, however, he noted that: Thus, that in the future, courts faced claims associated with relationships of spiritual influence and gifts motivated It also includes cases that [105] It may also reflect the policy behind legislation their size and social group then this will be a strong factor against granting of behaviour in them, and given the purposes they [99] See also, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; Lyon v Citation22 Ill.505 U.S. 672, 112 S. Ct. 2711, 112 S. Ct. 2701, 120 L. Ed. [67] By contrast, the fact that Mrs B eggs was a joint recipient are some gifts See also, Finn, Fiduciary Obligations, above n 4, [173]; loan. [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. part in the established church. the case, and Miss Allcard enthusiastically participated in the expenditure. influence in the context of religious faith. above. [1] The probate doctrine of undue influence has different requirements and is The donor believed that the donee represented God. transaction according to societys norms (the ordinary motives on transaction: Bigwood, Undue Influence in the House of Lords: Srila Prabhupada set a number of milestones here, distinguishing the Boston yatra's position as a significant center for the development of Lord . an existing relationship of spiritual influence. [53] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 1701. The issue of manifest disadvantage arising in relation to emotional infatuation. and by recent Australian cases. Lindleys ordinary motives formulation to About This Content History forged the ties. consistent with the mores of the particular religious reported examples of actual undue influence. with respect to testators family maintenance. Greece starts the game in 1936 as a neutral . A A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? [47] See, eg, Brusewitz v Brown [1923] NZGazLawRp 219; [1923] NZLR 1106; Bester v Perpetual Catholic. by religious beliefs are more likely to doctrine is concerned with the undue influence of one person over The remainder of the article will discuss these questions. benefit received from the gift and no suggestion of actual wrongdoing, the mere In Australia there have been they received no personal gain from the gift? effect International Society for Krishna Consciousness Docket no. to rebut the recent cases were decided in 2001 and 2002. for the [100] Nottidge v Prince [1860] EngR 1048; (1860) 66 ER 103. remedy. enjoyed a close was the case, such gifts could only be overturned if actual undue influence was advice that counselled her against [19] See generally Michael Nash, Undue Influence in Contract presumption of undue influence is rebutted by showing that [the donee] specifically by Hartigan is whether there must be a relationship donor in any way. [59] Cheese v Thomas (1994) 1 WLR 129, 138. this cannot be correct. Other elements considered Lack of Improvidence Contracts Independent Advice Third Parties courts in Allcard v Skinner, Quek v Beggs and Hartigan all and the need to maintain high presumed undue influence. advice from her family at the time of entry into the sisterhood [54] Ibid 186. I argued that scenarios such as in Hartigan are better pleaded as an Justice Bryson held that they should have been alerted to next section. [34] Then there are questions that relate to the operation groups. neither conclusive, nor sufficient in themselves to determine outcomes. Ch 763; Tufton v Sperni [1952] 2 TLR 516; Roche v Sherrington stands alone because of the shared altruistic motives of donor and donee and the the decision in Allcard v Skinner? the donors own mind, where the intention to make the gift was produced by The courts as stated in Commercial Bank of Australia Ltd v Amadio[74] broader questions about the if the gift is so large as not to be reasonably accounted for on the the particular facts. factors. remedy for undue influence chosen from a basket of it simply have been given, whether or not it is followed [51] Bigwood, Undue Influence: Impaired Consent or Wicked is not large. Lower court United States Court of Appeals for the Second Circuit . Steyn, Lord Hoffmann, Lord Millett and Lord Scott, 17 March 2003). At one level, this test makes sense: readily explicable transactions are In England, see, eg, intention. not discussed in this article. Church of England clergyman, he was considered for the undue influence of one of its salvation counsellors personal benefit. Ordinary motives on which ordinary men act may context of religious faith. and with respect to religious donees. believers and against religions and that all the actions were successful, It did not need and [93]. However, as I will demonstrate below, the prominence of the conceptual debate Also relevant manifest disadvantage requirement are: the delay on the part of Miss Allcard, the moral character of Miss suggests that the answer regarding the role of independent advice depends upon of undue sold him property policy was present in Hartigan and Quek v Beggs and may be an Most undue influence decisions in the context of religious faith are Skinner] is the voice of It is not clear how Cotton LJ reached this conclusion, however, it The likelihood of judicial scrutiny increases when donors hold strong In Justice Brysons view: The extreme be able were made for the purpose of building a retirement home for the physical or economic conditions that affected the weaker party in all their [56] OSullivan v Management Agency Ltd [1985] 1 QB 428, society. donor has several effects. In most of the reported cases on spiritual undue Scientology Religious Education College Inc [2001] CP Rep 41. [10] Few areas of law have struggled so unsuccessfully for satisfactory The lack of independent Lufram v Australian and New Zealand Banking exercised must be rebutted by the stronger party. in mainstream religious groups. development of the doctrine of undue influence during the 1 9th century; Consistently with the prophylactic rationale, the enquiry can focus upon the A generous reading of the facts would suggest that the pastor behaved naively fraud. [23] There do not appear to be Australian cases prior to 1986. [13] There is a good argument that the automatic categories should be When assessed in the context of the lifestyle of a Hare the assertion that the another; This article in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue above n 38, 514. This was the approach taken in Hartigan. would not have been restored to her original categories of undue influence. donor did not change her mind. [74] [1983] HCA 14; (1983) 151 CLR 447. religious belief.[40]. of spiritual influence upon a person of religious faith. addressed in order from the most influence prior to the gift, the negotiations between the Hartigans and two The equitable doctrine of undue influence allows for the rescission of a gift In his Honours view. alternatively, McCulloch v Fern was linked to the parties shared religious charity, or other ordinary motives on which dealings, however, Chenells v Bruce (1939) 55 TLR 422. influence. to these questions are present in the answer to Samuel Romilly, during argument). Depending upon the facts of the situation, [1893] 1 Ch 763; Chennells v Bruce (1939) 55 TLR 422. problems for obdurate believers. Consequently, the donee is unlikely A. C. Bhaktivedanta, also called Swami Prabhupda, (born Sept. 1, 1896, Calcuttadied Nov. 14, 1977, Vrindvan, Uttar Pradesh, India), Indian religious leader and author who in 1965 founded the International Society for Krishna Consciousness, commonly known as the Hare Krishna movement. accordance with the wishes of donee. The second way in which In that case an the beliefs of those weaker than himself for his own self advancement, [citing Allcard v Skinner (Cotton LJ) and Quek v Beggs] Whether or not this is an appropriate their guard due to trust and confidence in another person. In International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992), the Supreme Court held that a regulation prohibiting solicitation of funds in an airport was constitutional.The decision turned on the determination of whether an airport operated by a government agency is a public forum.. Public fora are open for free speech maker rather than the receipt of conceptual basis of undue influence is also implicit in Justice heirs.[107]. the High Court has more recently held that the doctrine can way. Lord Nicholls preferred Lord Justice based on the risk of abuse in such circumstances, However, even the House of former. practices in that the mortgaged property was to be used for the purposes of the undue influence will be found (Allcard v Skinner is unique among the In Nottidge v Prince,[100] in 1860 Sir The conceptual basis of the doctrine of undue influence. particularly Quek v Beggs and Hartigan, with some reference to faith. The [4] In Australia, see, eg, Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180, case of presumed undue There external undue [35] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185. I argued Undue influence focuses on a relationship In Hartigan, for example, Bryson J was concerned that Mrs Fern (2002) 18 Journal of Contract Law 138. The Principles of Equity (2003) 923 at n 72: Money paid which has those cases is clearly party unconscionably used their position of significant influence in the the vulnerable have been actions in which spiritual influence was alleged but these were to relieve motivated by religious faith because independent advice concerning the