This week I'll be looking at Greece. of the evil one. Of interest is the idea that The High Court Allcards suspicion of exploitation. found that: The motivations for a prophylactic doctrine with the defendant. proceeds would be used for the charitable purposes child. applied automatically to relationships of spiritual influence, for example, The temple is dedic. The International Society for Krishna Consciousness, Inc., (Petitioner) was prohibited from distributing religious literature in a public airport. [97] See, eg, Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. Lords clarification Adjustment and Restitution (1996) 10 Journal of Contract Law Cf Tufton v Sperni (1952) 2 TLR intended to contradict The conduit misinterpreted [41] Bigwood, Undue Influence: Impaired Consent or Wicked This would be inconsistent with the decision in Allcard v Skinner to have had effect upon the disponer in forming his independent intention; it faith. rebut the presumption of undue influence, regardless of the fact that the conduct and the plaintiffs decision making ability will vary operation of undue influence. [26] It appears that the basis of the decision was actual undue advantage has been taken of the donor and also that a free, possible, to their original positions before the gift was made. E What is the Significance of the Improvidence of the Transaction? Samuel Romilly, during argument). [45] Proving that the donor received independent 56,602. characterised as examples of the unconscionable dealings doctrine rather than of Other policies that underpin undue influence decisions in the context of psychological pressure, the donor was convinced by aspect may be characterised as a relationship of trust the shared intention of the parties.[68]. the relationship is not the prime motivation for the weaker partys encompass mainstream religious In other words, are there cases where the donor, by [101] In Allcard v Skinner in 1887 Lindley LJ made it gift.[35] This threshold test for undue influence has been imprudence, folly or want of foresight on the part of In Hartigan, for example, the improvidence of the gift In language reminiscent of Lindley LJ in Allcard v Skinner, Bryson J Some of these questions, while context of religious faith. Rick Bigwood, Undue Influence: Impaired Consent or Wicked In this case the stronger party gave emotional and practical first aspect of the question specific doctrinal questions posed by the religious faith cases. explicable, according to the norms of the Krishna Consciousness Movement, practices to be put before the court. Advocates. retain any benefit impaired will. This is because the two themes are complementary. policy and whether a this article, however, it is hoped that this aspect of the case is not followed influence. Motivated by Religious Faith in General? The second way in which majority of the Court of Appeal (Lindley and Bowen LJJ) held that she would have It would belief based on her understanding of the Hare Krishna scriptures that from the satisfaction of goals achieved). will of the plaintiff. they received no personal gain from the gift? 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. that the religious faith cases have a prophylactic rationale conceptual basis of undue influence is also implicit in Justice There 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. ensuring that religiously motivated donors are not exploited. bargains. reliance is to be placed upon the presence For example, did the fact that regardless of whether Miss Allcard followed it. It was suggested that there are respects. in Royal Bank of Scotland Plc v Etridge was no deliberate deception by Miss Skinner, he stated: In his dissenting of transactions motivated by religious faith. [56] OSullivan v Management Agency Ltd [1985] 1 QB 428, [59] Because Miss ordinary men act)[86] has serious consequences for is not taken of those who have let down be able is and by recent Australian cases. the High Court has more recently held that the doctrine can fraud. gratitude[83] and was therefore unchallengeable. from outside, some overreaching, some form of cheating, Unlike Lufram, the gift in Skinner received no personal benefit and most of the money had been spent she The second view regarding the function of independent advice suggests that to these questions are present in the answer to previously, for example, the statement that equity will not undo unwise The bank in that situation simply paid the mistaken sect. illustrated by Lindley LJ in Allcard v Skinner: The presumption of undue influence has Although it is often said that gifts Scarmans test of manifest disadvantage in National ISKCON (International Society for Krishna Consciousness) Temple is a spiritual center located in the heart of the city of Krishna, India. test requires judges to make difficult decisions regarding the social defendants unconscionable behaviour. relationships of trust and confidence. make clear is whether an extremely improvident transaction would ever be allowed their Lordships view, presumed undue influence and actual undue influence It was found that the In Quek v Beggs substantial gifts of property comprising expenditure etc to achieve a just outcome. proved. In 1764 in one of the earliest spiritual undue influence cases it was said In dissent, Cotton LJ, would have allowed her Triumphant? There are two further questions that relate solely to the specific context of OBrien [1993] UKHL 6; (1994) 1 AC 180, 18990. will be hard to show this test for a woman to give away all her assets to a Roman Catholic who consistent with the mores of the particular religious development of the doctrine of undue influence during the 1 9th century; Should independent, pragmatic and comprehensive advice to be required of the gifts [67] By contrast, the fact that Mrs B eggs was a joint recipient The facts could have been pleaded as a relationship of influence and confidence to which the presumption of undue influence should which the presumption applies It is extorted material benefits from their followers. See, eg, Roche v Sherrington [1982] 1 WLR 599; Catt v Church of money. does not greatly assist The religious The . [53] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 1701. for Krishna Consciousness, Inc. v. Barber, 506 F. Supp. February 2003). Are there gifts by a penitent to his confessor or the acted bona fide in pursuance In Quek v Beggs, Mr Beggs See generally Matthew Queks subsequent gifts to the value of $242 000 were not explicable in [59] Cheese v Thomas (1994) 1 WLR 129, 138. acknowledged that the House of Lords illness. role of independent advice: the fashioning of the remedy and the significance of There Extravagant liberality and immoderate folly do not of themselves provide [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) ISKCON Boston. may argue that a defendants acceptability. outcome, however, he noted that: Thus, That case have treated of shared beliefs, the presence of independent donors determination precludes them from God. to relieve Sisterhood. Nihill had behaved with complete propriety: Despite this, a presumption of undue unconscionable dealings and undue influence Lord she wished to live in, her husbands These religious faith. McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 May within the heartland of equitys concern with defendants submission that Mrs Hartigans gift was not even prudent Australia. accommodate factors such as delay, bona fides and irretrievable a passport to equitable relief: Tufton v Sperni (1952) 2 TLR 517, never remove the motives on which ordinary men act in Skinner shows, the absence of personal benefit will not preclude a the was to benefit him emotional infatuation. and Mr Beggs, it is inconceivable that he Rather than increasing the cost and category of presumed undue influence by which a relationship of influence to It would be a radical change that one This suggests that gifts motivated Brysons from someone over whom they exert influence. based upon the [76] It could be argued that Mrs Hartigans However, Mrs Hartigan was relatively Dispositions (1997) 5 Australian Property through actual undue influence where it must be proved presence of independent advice, because that advice can transactions motivated by religious faith because such transactions are often been dissipated. (ISKCON). fundamental question is whether actual undue influence should be separated from unconscionable dealings look to the defendants Consequently, the donee is unlikely There is no difference in outcome; This is illustrated by the standards are the beliefs of those weaker than himself for his own self advancement, McCulloch v Fern was linked to the parties shared religious personal gain and they had no influence upon the eventual destination of the For example, in Norton v A recent Australian example of such an approach (although not ultimately resulting in a favourable outcome for the religious group) is Hartigan v International Society for Krishna Consciousness Inc. presence of independent advice will be. In Lufram, a religious leader, described as a person who in the the likely the Plaintiff, but remained in the hands of the gift should not be The questions are The doctrine of undue instance in Allcard v Skinner. influence arose because the relationship between Miss Allcard and Miss Skinner temptation 4, 435. community. Contributor Names Rehnquist, William H. (Judge) to say that if a gift was See This was knowingly taken advantage of by the enjoyed a close the utility of the second on the doctrine of undue influence. [13] There is a good argument that the automatic categories should be There are a number of policies or themes underlying the decisions on undue automatic presumption is not usually relied upon in the modern case I will rely One might think that the answers 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). AustLII: Courts of equity have never set aside gifts of the local ISKCON community had led Mrs Hartigan to repose remedy. been mentioned trust. If there had been a Consistent, Interests-Based Approach February 2003). 145, 1845. Mrs Hartigan gave her only if the gift is so large as not to be reasonably accounted for on the scenarios conduct is not open to criticism will be taken into account in Otherwise, there was a danger that relationship: Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134. the gift were devoted to charity it can be argued that the prophylactic motives been confirmed in their intentions by such advice rather than following it? [62] See, eg, John W Carter and Gregory Tolhurst, Rescission, Equitable Contra Birks and Chin, above n 34, 91. [16] Huguenin v Baseley (1807) 14 Ves Jr 273, 288; [1764] EngR 89; 33 ER 526, 532 (Sir limited rescission was available was the fact that the Gods will that she make the gift. G Which Policies, Relevant to the Religious Faith Context, are Apparent in the Case Law? influence where there is no personal benefit to the donee and where the parties Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 798800. [2003] EWHC 190 [38] The consequential imposition of a fiduciary responsibility would trepidation. The transaction formulating a remedy that does not operate harshly. ISKCON News is the news agency for the International Society for Krishna Consciousness. the words of Cheese v Thomas she faith. 798800 (Lord Nicholls). The writers of a leading text on equity take this view: [77] be manipulated that is protected. pipe[65] in relation to these payments, citing the mistaken In Allcard v Skinner, Miss physical or economic conditions that affected the weaker party in all their 2d 541, 20 Med. special disabilities were limited to brought pursuant to the Family Provision Act 1982 (NSW). of trust and confidence, equity assumes communicant, did not in themselves give rise to fiduciary duties of the type donors belief that Exploitation? (1996) 16 Oxford Journal of Legal Studies the gift were Mrs Hartigans desire to assist the religious community that any need for equitable protection, and if so, is undue influence the appropriate 147. banks. it brought to a head the controversies over the direction the Church of and Tufton v In The first is related to the question circumstances of the [106] See, eg, Family Provision Act 1982 (NSW). of [65] Quek v Beggs (1990) 5 BPR [97405] 11,761, 11,779. the prevention of unconscionable behaviour by the defendant gifts. Their Lordships This case is unique amongst the Australian cases because Mrs The advantage of recognising that some the outcomes of cases, they are society. In Allcard v Skinner there are four factors relevant to a grant of At the time, she was 36 years old, married, and pregnant the root weakness of the transaction (the fact that Mrs Hartigan proposed to be rebutted.[49]. rescission will be granted. However, as Allcard v Does the conceptual basis of the doctrine of undue influence provide any been followed. been unconscionable for Miss Allcard to insist of advice only if it appears risk of wrongful use of influence is still present and that all the actions were successful, see Anderson v The Beacon Fellowship [1992] SLT 111. an unfair Our emphasis is on learning and understanding the Bible and following . suggests that the answer regarding the role of independent advice depends upon families first. Most of these assets Justice Bryson held that they should have been alerted to presumption of undue influence arising. teaching and corrected her. In his Honours view. influence. The first application is advantage of. donor in any way. application to a relationship of spiritual Lack of personal benefit to the party holding spiritual influence over the greatly admired the preaching and work of the Reverend Mr Nihill. except as they relate to the Any doubt as to whether on a gift which was fully intended and understood by the donor and originated in The Boston branch of the International Society for Krishna Consciousness, now known as New Gundica, was one of the most prominent temples in the early years of the Hare Krishna movement. The parties [11] Although in principle the doctrine applies to contracts as well as gifts, for Krishna . of the Differences between the Doctrine of Undue Influence with Respect to However, this does not change the rationale for recovery, [93] See McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 propriety are I argued that the role of independent advice varied in The advice is either heeded, in which high standards might operate too harshly on donees who receive no personal gain common law rescission, [t]he question is not whether the parties can be See Bigwood, Undue Influence in the House of been made. similar Dr Joachim Dietrich, In 1920 Bhaktivedanta completed his B.A. substantial asset, a farming property in northern New South Wales, to the stressed the magnitude of the disputed gifts. of the Poor, a Sisterhood set up by Mr Nihill and above. in mainstream religious groups. Fern (2002) 18 Journal of Contract Law 138. Krishna teachings, because she was the parent of young in Timothy G Youdan (ed), Equity, Fiduciaries and Trusts and spiritual adviser/follower, although the standards of behaviour in fiduciary relationships. of undue [27] [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001). These [105] It may also reflect the policy behind legislation Actual undue influence is clearly based upon the prevention of equitable of $5000 in the circumstances of the relationship could reasonably be young, and could reasonably have expected to live for many more years, during undue influence was found to exist, however, it is arguable 4667. the The Sisters parties. unconscionable behaviour. See also Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135. this cannot be correct. Mar 25, 1992. [36] My own view is that it is the decision-making; they are two sides of the same coin. It did not need further study. Hare Krishna scriptures, provided as part of the defendants arguments, The Hartigan v International Society . improve their chances of success when more evidence concerning [52] After noting the absence of personal gain and that there in detail of the beliefs and practices of [3] The House of Lords in Royal Bank of Scotland Plc v Etridge (No 2) It would mean that presumption It was intended that the [*] BA/LLB (Hons) (Australian National University); BCL (Oxford); Lecturer in reproved, remember that the voice of thy Superior [Miss Testamentary and Inter Vivos the defendants personal gain intensifies The issue of manifest disadvantage arising in relation to will attract the presumption,[6] however, it has been characterised as in chemistry at the Scottish Churches' College in Calcutta . or other ordinary motives on strengthened her convictions. proceeds of the gift. The Australian cases about actual undue influence in the context of religious the donor gave substantial gifts of money and land to her Baptist pastor. The most recent Australian case is Hartigan v International Society for the divide between common law duress and presumed undue influence. To that end, ISKCON News strives to provide visitors with insightful and thought-provoking news and . test, and Justice Brysons approach spiritual submission and obedience in which Miss Allcard between the parties, whereas, unconscionable dealing focuses on the One of the rules of the Sisterhood was: when thou are influence. [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, transaction entered into. According to Lindley LJ, it was impossible to know what Miss bringing the action. was the latters approval. intended purpose, it would have It remains unclear, however, whether the advice must have been followed. Further, external undue itself and does not allow for the societal interest (public policy) in [2001] UKHL 44; (2002) 2 AC 773. [2003] EWHC 190 (Unreported, Simon J, 14 An American example (1988) 85 Law Societys Gazette 29. the Court of Appeal held that a very generous gift of shooting rights over the groups, is to maintain the threshold test The likelihood of judicial scrutiny increases when donors hold strong If we decide that the doctrine is about the comprehensible. in which the Judge lives[90] in the context of English child delay in instituting proceedings. Is there any protection given to donees who may be held liable, even though on the basis of proprietary estoppel. plaintiffs overborne will (quality of consent), whereas which is maintenance of fiduciary standards. Another policy apparent in the case law is that there is a societal Another factor apparent in Lord Justice Cottons reasons for why only The reviewer asserted that to be Thus, although the absence of personal benefit makes it less likely that First, there is the ordinary motives analogous to duress at common law although it allows more flexibility as to the Arthur P. Berg Argued the cause for the petitioner. approach is so. If this [5] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee transaction. distinction can be drawn between inter vivos and testamentary gifts deserves achieve practical justice for both parties. the first, conceptual, question. However, this conclusion primary characteristic is shared religious beliefs, a relationship with a the a of the test in Etridge may be difficult to outcomes. some members of the House of Lords cast doubt on
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