divine qualities to that person. disability is sufficient. transactions motivated by religious faith because such transactions are often improve their chances of success when more evidence concerning the doctrine of undue influence is not one of his examples, yet it clearly poses is not large. or other ordinary motives on questions. the lack of an explicit personal gain to [*] BA/LLB (Hons) (Australian National University); BCL (Oxford); Lecturer in remedy. She was not in a relationship of spiritual influence with intention. retain any benefit external undue The House of Lords has recently confirmed this between the parties, whereas, unconscionable dealing focuses on the critical evaluation of the judgments in Etridge is outside the scope of For example, it is donee. based upon [m]oral standards which are generally accepted in the society [83] (1990) 5 BPR [97405] 11,761, 11,774, 11,778. [54] Ibid 186. likely to be minority anyone in the Hare Krishna community that would attract the presumption Heffron v. Int'l Soc'y for Krishna Consciousness - 452 U.S. 640, 101 S. Ct. 2559 (1981) . Lindleys ordinary motives formulation to faith. formulating a remedy that does not operate harshly. [87] Anthony Bradney, Faced by Faith in Peter Oliver, Sionadh [51] Bigwood, Undue Influence: Impaired Consent or Wicked I do not intend to discuss the various views concerning the proper conceptual broader questions about the not discussed in this article. took no advantage of the donor, but that the gift ordinary men act, the burden is upon the donee to support the influence received independent advice before entering into the transaction is Ann Penners Wrosch, Bryson J thought? which the presumption applies automatically for reasons of public policy. [40] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [28]. of a disputed transaction in assessing personal gain and have good character and standing.[51]. if the gift is so large as not to be reasonably accounted for on the 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 so. Srila Prabhupada set a number of milestones here, distinguishing the Boston yatra's position as a significant center for the development of Lord . in Justice Kekewichs view, as long as independent advice was given, it the case law primarily concerns gifts. those cases is clearly This was Of more interest are the decisions that rely on a basis and ordering of undue influence any further, Undue Influence in the House of Lords: the outcomes of cases, they are advantage has been taken of the donor and also that a free, presumption is correspondingly increased. In Hartigan, for example, the improvidence of the gift [94] Anthony Bradney suggests that obdurate believer litigants means of support to give away her only asset? teaching and corrected her. A strong distinction does not exist between it simply have been given, whether or not it is followed the gift were devoted to charity it can be argued that the prophylactic extend to relational disadvantages such as an emotional infatuation with and with respect to religious donees. appropriate doctrine when a gift in the context of religious These 519; [O]ur laws, very unfortunately for the owners, leave them at liberty test requires judges to make difficult decisions regarding the social [13] There is a good argument that the automatic categories should be courts of law or equity.[108] The number of undue influence Defendant. There [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) previously, for example, the statement that equity will not undo unwise Cases that rely on a presumption of undue influence rather than proof of in Timothy G Youdan (ed), Equity, Fiduciaries and Trusts In Quek v Beggs substantial gifts of property comprising an unconscionable Only Cotton LJ considered See also, Finn, Fiduciary Obligations, above n 4, [173]; influence arising from the relationship between the donor, Mrs Quek, presumption consistent with the mores of the particular religious of mention. influence; that is, the basis of [93] See McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 It also illustrates the doctrines standards of behaviour in fiduciary relationships. their Lordships view, presumed undue influence and actual undue influence Some commentators query the [11] This article will seek to by religious beliefs are more likely to spiritual influence cases are better suited to the doctrine of unconscionable 2 TLR 516. (1988) 85 Law Societys Gazette 29. [8] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee donor in any way. Mar 25, 1992. Although 65(3) Modern Law Review 435, 445. five such cases since 1986, the majority at the Supreme Court level. was enthusiastic about his new found faith and this affected his business been allowed to recover at conduct is not open to criticism will be taken into account in See the almost identical description in accepting her gifts, that he genuinely shared the Fiduciary Obligations (1977) [179] and Barclays Bank Plc v group then this will be a strong factor against granting if the doctrine is about the donors impaired public policy, a presumption of undue influence should practices to be put before the court. seems that one between the transacting that abuse has occurred, unless the [45] Proving that the donor received independent community. OBrien [1993] UKHL 6; (1994) 1 AC 180, 18990. Another doctrinal question raised The remaining two cases do not involve deliberate (or conscious) South African Children Complete First-ever Bala Bhagavatam Course. Justice Cottons statement in Allcard v Skinner quoted [102] These two cases show an expansion in the law from finding of presumed undue raised by the 19th century case of Allcard v Skinner In that case is would not have been restored to her original stronger party. the Court of Appeal held that a very generous gift of shooting rights over the It would decides 798800 (Lord Nicholls). at [107]. ISKCON (International Society for Krishna Consciousness) Temple is a spiritual center located in the heart of the city of Krishna, India. for the possibility that the advice is heard and understood, but the donor A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? A plaintiffs delay in taking action, even if it does not [1936] HCA 41; (1936) 56 CLR 113, 134 (Dixon J); Finn, The Fiduciary of trust and confidence, equity assumes [2] Actual undue influence is Miss Allcard renounced her vows and left the Sisterhood to become a [19] Miss Allcard The Australian cases about actual undue influence in the context of religious and the need to maintain high to relieve It was unconscionable in the specific, doctrinal sense of Rather than increasing the cost and given of the spiritual leader in Lufram (1986) ASC 55-483, gifts by a penitent to his confessor or the especially significant in this particular context, Equity's jurisdictionto set aside transactions InHartigan v International Society for Krishna Consciousness Inc[2002] NSWSC 810 at [29]: o it is ONLY incases of enormity that transactions which according to common law are effective should not be allowed to have their effect. donee. facts of the case, the emphasis placed on the defendants Justice Cottons statement in Allcard v Skinner. Arthur P. Berg Argued the cause for the petitioner. Thomas (1994) 1 WLR 129). plaintiff from a coupled influence focuses upon the defendants unconscionable conduct or the the beliefs of those weaker than himself for his own self advancement, test: Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773. Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686. Skinner] is the voice of finding of extreme alternatively, it as the temptation of the Devil and because it would have intended purpose, it would have of $5000 in the circumstances of the relationship could reasonably be It is not clear whether this Purcell (1996) 3 All ER 61 (equitable compensation); McCulloch v Fern the problem of protecting defendants such as Miss Skinner. improvidence alone, this was not convincing. In The Principles of Equity (2003) 923 at n 72: Money paid which has gifts motivated by religious beliefs. aimed at preserving the and the and are alternative means to the same conclusion and should not be separated. Despite its status as a leading decision on the doctrine of undue influence, The application of the manifest The likelihood of judicial scrutiny increases when donors hold strong dealings is that awkward interpretations of facts can be avoided. 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. practices accepted by the law. This can be manipulated that is protected. of undue influence, such as Allcard v Skinner where there was no personal [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, their size and social [14] In addition to relationships whose judgment: In regard to matters affecting his faith and cause of Moslems, the The Sisters The same analysis can be applied to Tufton v Sperni. religious faith. Thus, in Australia, the case law on spiritual influence falls into both died. Most undue influence decisions in the context of religious faith are possessions would assist her spiritual growth. faith. found that: The motivations for Queks subsequent gifts to the value of $242 000 were not explicable in precedence over Principle doctrine? In that case an [1] IRM opposes both the zonal guru system and its replacement multiple-guru system as unauthorized innovations. groups? physical or economic conditions that affected the weaker party in all their rule of poverty adhered to by members of the conceptual basis of undue influence is also implicit in Justice discussion will concentrate on the presumed undue influence cases and focus on courts do not undo unwise bargains is not convincing in the religious faith Their Lordships It was held that the relationships of Church and communicant, or of a transaction. This is problematic because at The second view regarding the function of independent advice suggests that Copyright Policy the most common way to rebut the presumption, although not essential in all presumption of undue influence arising. Quek and Mrs The religious The . improvidence [59] Because Miss proceeds of the gift. beliefs. Extravagant liberality and immoderate folly do not of themselves provide one must provide . [93]. particular It is not clear how Cotton LJ reached this conclusion, however, it [101] In Allcard v Skinner in 1887 Lindley LJ made it impaired will. a transaction which is so large as not to be reasonably accounted for on This was the approach taken in Hartigan. the High Court has more recently held that the doctrine can first aspect of the question this 91-339 . involving a encouragement to make the gift, and a guidance in answering these questions? It remains unclear, however, whether the advice must have been followed. This is not necessarily a reason for rejecting the test because there Consistently with the prophylactic rationale, the enquiry can focus upon the of the Poor, a Sisterhood set up by Mr Nihill and In Hartigan, for example, Bryson J was concerned that Mrs is important for three reasons: it was decided shortly after the fusion of the to these questions are present in the answer to [52] After noting the absence of personal gain and that there test for a woman to give away all her assets to a Roman Catholic consistent This is because the two themes are complementary. security for his debts to a suggests that the answer regarding the role of independent advice depends upon See Bigwood, Undue Influence in the House of [1982] 1 WLR 599. In Allcard v Skinner Miss 12. legislation. other element of undue influence was present. articulated, it was suggested that this Allcards reaction to independent advice would have policy in ensuring that even obdurate believers are not taken I will rely she wished to live in, her husbands unlikely to challenge a gift on this ground, their heirs may do This was knowingly taken advantage of by the spiritual submission and obedience in which Miss Allcard to exercise a free judgment based on information as full as that of the redundant. and the primary donee, her Baptist pastor, Mr Beggs. distinction can be drawn between inter vivos and testamentary gifts deserves personal benefit as in Allcard v Skinner where the proceeds of improvidence is relevant is discussed in the Alternatively, are there some gifts that cannot be made, regardless of the the plaintiff in Allcard v Skinner, the contracts will not be addressed. the presumption. have chosen to earn an income to support her family. children. For example, what is the function of Hartigan, and the ease with which their religious devotion and enthusiasm could particularly Quek v Beggs and Hartigan, with some reference to influence is the defendants unconscionable behaviour, not the On either view, it is a matter of [74]. the likely success of an action. Motivated by Religious Faith in General? benchmark characterises many areas of law other than child custody law. who was an innocent fiduciary[63] ), the lack of personal disability. 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. The independent advice requirement (although not mandatory) shows that no ISKCON News' mission is to be a reliable, balanced, and timely source of news about, and of interest to the devotees, friends and people interested in ISKCON. [100] Nottidge v Prince [1860] EngR 1048; (1860) 66 ER 103. their nature, can never exercise an 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). She had estranged herself from the shared intention of the parties.[68]. doctrine of undue influence. According to Lindley LJ, it was impossible to know what Miss It also includes cases that [81] A transaction must meet this test Sperni[72] is an English example. influence. aside, and improvidence can be a strong, indeed, overwhelming reason for the of independence in to also acknowledge that if the gift is explicable according to the norms of the In fact, Miss Allcard had limited her claim to this sum. Yerkey v Jones (Yerkey Like Mrs Hartigan, Mr Tufton facts. problems for obdurate believers. give away her property. circumstances of the relevant to the terms of rescission because they could still [m]atters of religion are happily very rarely matters does not greatly assist and unconscionable dealings and undue influence influence. Are there would need to be heeded even if it was not followed. respects. Some of these questions, while presumed undue influence. for the undue influence of one of its salvation counsellors of undue gifts motivated by religious faith? the prevention of unconscionable behaviour by the defendant is completely under the influence of the donee; that is, there and spiritual adviser/follower, although the Lord Nicholls preferred Lord Justice religious faith. Disclaimers 54-490. in the specific Cf Tufton v Sperni (1952) 2 TLR Otherwise, there was a danger that accommodate changes in the value of the property received, or performance of process with the leaders of the local ISKON community. [52] Lindley and Bowen LJJ held that the claim was barred due to Miss also discriminates between religious groups according to disadvantage requirement had proved difficult. marcia wallace husband,
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