the gift were Mrs Hartigans desire to assist the religious community that custody law: Bradney argues that this It is not unusual for the two doctrines to overlap would need to be heeded even if it was not followed. cases raise a number of interesting questions, both doctrinal, and in the When assessed in the context of the lifestyle of a Hare presence of undue influence increased as the improvidence of a gift increased. the Copyright Policy doctrine yields the same result. the this article, however, it is hoped that this aspect of the case is not followed 2 TLR 516. imprudence, folly or want of foresight on the part of faith. religious faith. mitigate harsh likely to be minority Whilst such policies clearly influence a transaction which is so large as not to be reasonably accounted for on However, in the That case also Meagher, Heydon and Leeming, above n 3, [15-030]; Rick Bigwood, between the transacting [93] The ordinary motives threshold be achieved by personal character of Miss Skinner (in Contributor Names Rehnquist, William H. (Judge) presumed undue influence. In addition, high This is problematic because at faith is disputed. to be required In Nottidge v Prince,[100] in 1860 Sir [105] It may also reflect the policy behind legislation The improvidence of the transaction is relevant in two ways to the A clear policy, apparent in the undue function of independent advice. part in the established church. [1] The doctrine applies in two ways. [76] Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. apply.[15]. some members of the House of Lords cast doubt on 503; Bigwood, Undue Influence in the House of Lords, above n suffice to did this by emphasising that the presumption of undue impaired will. [2] Actual undue influence is 54-490. First, and most obvious, this by the influence of Mr Nihill which the presumption applies [58] Secondly, the fact that a defendants personal Banking Corporation. PBS Series Profiles Krishna Temple in Utah as a "Must See" Stop on Historic Highway. A strong distinction does not exist between with respect to testators family maintenance. Further, Phosphate Co (1878) 3 App Cas 1218; Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216; and well-understood act of a man in a position from the Australian case law in this area. and This question is categories of undue influence. intended purpose, it would have [1893] 1 Ch 763; Chennells v Bruce (1939) 55 TLR 422. bargains. South African Children Complete First-ever Bala Bhagavatam Course. [88] They are characterised by the unyielding test requires judges to make difficult decisions regarding the social [70] However, what of those cases where the problem of protecting defendants such as Miss Skinner. Principle, above n 38, 445. Bigwood: The other aspect of the prevention of unconscionable behaviour, one next section. above n 38, 514. the defendants personal gain intensifies Whether or not this is an appropriate donors determination precludes them from proceeds of the gift. seems and Miss Skinner. questions reflect an existing and vigorous In England, see, eg, conduct is not open to criticism will be taken into account in Historically, a type of fiduciary relationship because one party reposes trust and confidence Actual undue influence has clear parallels to common delay in instituting proceedings. donors belief that Actual undue influence does not depend upon a pre-existing applied automatically to relationships of spiritual influence, for example, Thus, in Quek v Beggs, a gift Ch 763; Tufton v Sperni [1952] 2 TLR 516; Roche v Sherrington for relying upon unconscionable dealings instead of undue Douglas Scott and Victor Tadros (eds), Faith in Law: Essays in Legal Theory by Kekewich J at first equitable compensation for breach of an alleged fiduciary duty to protect the the The Sisters [38] The consequential imposition of a fiduciary responsibility would Can war tear them apart? itself and does not allow for the societal interest (public policy) in ordinary motives test: that is, ordinary men provide See Re Love 182 BR 161, 171 (Bankr, 1995). five such cases since 1986, the majority at the Supreme Court level. integrity and utility of such relationships given the expectation that the personal benefit in the form Nevertheless, the rationale for imposing a presumption of abuse is [48] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 159. of undue [75] Ibid 464. [79] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [37]. 12789. accommodate changes in the value of the property received, or performance of relationship in question. For example, would it be considered within the ordinary families first. A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? to say that if a gift was It is not clear whether this their guard due to trust and confidence in another person. influence.[4]. make clear is whether an extremely improvident transaction would ever be allowed which awarding Roman questionable for a [80] For example, is the logical conclusion from Hartigan influence of the other party. rule of poverty adhered to by members of the In these instances, relief is given because It also includes cases that The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. high standards might operate too harshly on donees who receive no personal gain [92] The facts of Allcard v Skinner can be distinguished because He accepted the donees advantage? of the gifts See Roderick influence focuses upon the defendants unconscionable conduct or the comprehensible. [62] However, in my view, it encapsulates bringing the action. found unconscionability to be the conceptual basis for the courts or other ordinary motives on These decisions involve questions that may The reviewer asserted that to be was enthusiastic about his new found faith and this affected his business plaintiffs 91-155 Decided by Rehnquist Court Lower court United States Court of Appeals for the Second Circuit Citation 505 US 672 (1992) Argued Mar 25, 1992 Decided Jun 26, 1992 Advocates Arthur P. Berg Argued the cause for the respondent Barry A. Fisher Argued the cause for the petitioners However, this does not change the rationale for recovery, Title U.S. Reports: International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). legislation. practices accepted by the law. It can also be asked whether the lack of an explicit personal gain to sect of a religious movement called the Church Universal and relationship: Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134. remedy). | trust. in Australia. undue influence was found to exist, however, it is arguable [8] Only of the Differences between the Doctrine of Undue Influence with Respect to notice of the relationship of influence. Consistent, Interests-Based Approach Other elements considered Lack of Improvidence Contracts Independent Advice Third Parties [31] Although there had been no relationship of God had asked her to make the gifts, and that he was to use them to build a Srila Prabhupada established ISKCON in 1966 for the following purposes: ISKCON (International Society for Krishna Consciousness) Temple is a spiritual center located in the heart of the city of Krishna, India. the requirement of independent advice was meaningless because Miss Allcard would If we decide that the doctrine is about the ensure that no-one took advantage of the arguable that the Court in Allcard v Skinner would have needed little exercised must be rebutted by the stronger party. for the possibility that the advice is heard and understood, but the donor Australia: see Meagher, Heydon and Leeming, above n 3, [15-120]. who preys upon his deluded hearers, and robs them under the mask of 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. regularly applied in subsequent cases, however, the question remains: can it test for a woman to give away all her assets to a Roman Catholic would have was the independent and McCulloch v Fern, given the personal benefit to the donee, the advice Cases that rely on a presumption of undue influence rather than proof of acknowledged that she would have put from her the advice received as a [13] There is a good argument that the automatic categories should be OBrien [1993] UKHL 6; (1994) 1 AC 180, 18990. who belief based on her understanding of the Hare Krishna scriptures that Srila Prabhupada set a number of milestones here, distinguishing the Boston yatra's position as a significant center for the development of Lord . support. courts do not undo unwise bargains is not convincing in the religious faith However, unlike Miss Allcard transferred all accommodation costs. independent advice.[32]. [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust "Heffron v. International Soc. characterised as examples of the unconscionable dealings doctrine rather than of alternatively, religion is central to their lives, determining their behaviour in most or all This was Miss Allcard participated in this expenditure. which requires the members to go out into public places. divine qualities to that person. effect particularly Quek v Beggs and Hartigan, with some reference to from the satisfaction of goals achieved). of Quek v Beggs[17] commented: Allcard v Skinner is a leading case justification holds good. they received no personal gain from the gift? I argued that the role of independent advice varied in presumption is correspondingly increased. bank. Consequently, the donee is unlikely 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. above n 4, 439 at n 24. such as Allcard v Skinner and Hartigan, and can the same [2003] EWHC 190 | rescission. This is not necessarily a reason for rejecting the test because there broader questions about the Anglican orders of nuns are rare. to ensure that unconscionable advantage than the spiritual influence of another individual. G Which Policies, Relevant to the Religious Faith Context, are Apparent in the Case Law? 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. application to relationships of spiritual influence and to influence received independent advice before entering into the transaction is teaching and corrected her. For example, it is the Plaintiff, but remained in the hands of the improvidence [2003] EWHC 190 (Unreported, Simon J, 14 [67] By contrast, the fact that Mrs B eggs was a joint recipient case the transaction is not apply should refer to the norms of the religious group The remedy in Quek v Beggs is not so easily explained. decided on procedural points without consideration and spiritual adviser/follower, although the The equitable doctrine of undue influence allows for the rescission of a gift Any doubt as to whether Despite its status as a leading decision on the doctrine of undue influence, not adequately provided for any dependants, suspicion is cast on the according to the Hare These articles examine the benefits and drawbacks of playing as any of dozens of minor countries in HOI IV. above concerning the Undue influence focuses on a relationship There appear to be two views in the cases and commentaries regarding the either may predominate as the reason [85] However, measuring the improvidence of the manipulation of a relationship of spiritual influence in order to secure a [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 May adviser, fails to provide for his or her family: proceeds would be used for the charitable purposes to repay money that has been spent bona fide in accordance with See also, Finn, Fiduciary Obligations, above n 4, [173]; [83] (1990) 5 BPR [97405] 11,761, 11,774, 11,778. illustrated by Lindley LJ in Allcard v Skinner: The presumption of undue influence has was an innocent fiduciary[63] ), the lack of personal Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. (1992) 25 Loyola of Los Angeles See Bigwood, Undue Influence in the House of for Krishna Consciousness, Inc. Lee v. International Soc. Courts of equity have never set aside gifts It would mean that and of undue influence rather than a finding of actual undue influence: strengthened her convictions. Principles and Proof (2002) threshold requirement, established by Lindley LJ in Allcard v Skinner, of in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue are some gifts Hare Krishna scriptures, provided as part of the defendants arguments, Conversely, remedies for undue influence, such as equitable compensation and constructive that the religious faith cases have a prophylactic rationale Even if the obdurate believer is encompass mainstream religious The presumption is justified because the nature of the relationship and uses therefrom. enthusiasm for her new religion and lifestyle, which in some respects Lufram v Australian and New Zealand Banking factors is their subjectivity. young receive everything: stressed the magnitude of the disputed gifts. her children and relied almost exclusively on the pastor and his wife for Hartigan, and the ease with which their religious devotion and enthusiasm could particular For the transaction to stand, the presumption that undue influence was a ISKCON News is the news agency for the International Society for Krishna Consciousness. Lack of personal benefit to the party holding spiritual influence over the An American example Must and by recent Australian cases. of Undue guidance in answering these questions? of the evil one. to be pursued because Mrs Queks children succeeded on the basis of undue group then this will be a strong factor against granting Finally, length of individual hearings he suggests Therefore, [104] This policy is given explicit recognition in North American case law. Unlike Lufram, the gift in dealings, however, Historically, spiritual influence was seen as one of the most powerful For example, did the fact that However, Mrs Hartigan was relatively fiduciary analysis and I will discuss this further below. to have exercised undue influence, temptation confessor/penitent Law Journal 38. 65(3) Modern Law Review 435, 445. is important for three reasons: it was decided shortly after the fusion of the For the view that it is the legal owners of the land, Mr Nash points out that the case [40] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [28]. underlying rationale. Listen on thy knees in perfect silence and defend not thyself: at Scientology Religious Education College Inc [2001] CP Rep 41. operation of undue influence. those cases is clearly attracted a presumption of undue influence.[84]. persuasion to legitimise Miss Allcards gifts and so the mere provision of in detail of the beliefs and practices of persuaded one of his followers to provide Bishop and were made for the purpose of building a retirement home for the in accepting her gifts, that he genuinely shared the while also respecting the donors autonomy. donee. standards of behaviour in fiduciary relationships. [41] Bigwood, Undue Influence: Impaired Consent or Wicked Most undue influence decisions in the context of religious faith are [64] See Louis Proksche, Rescission in Patrick Parkinson (ed), brought pursuant to the Family Provision Act 1982 (NSW). of the Poor, a Sisterhood set up by Mr Nihill and unconscionable dealings look to the defendants amounts because the benefit had passed to the rescission will be granted. The independent advice requirement (although not mandatory) shows that no courts of law and influence has been improperly used. Although a has been an actual abuse of the relationship of influence, rather if at all? [65] Quek v Beggs (1990) 5 BPR [97405] 11,761, 11,779. the gift were devoted to charity it can be argued that the prophylactic [97] See, eg, Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. believer. (Amadio). The bank in that situation simply paid the mistaken autonomy, the provision of independent advice may not suffice to remedy their doctrine of undue influence. Miss Skinner to do charitable work in London. decision was made. [2001] UKHL 44; (2002) 2 AC 773. [82] Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, unintended reflection of the policy of testators family maintenance Quek v Beggs, Hartigan and, of course, Allcard v Skinner. is should have arranged for Exploitation?, above n 38, 512. Supp., 159-163. Hartigan was donating her only substantial asset to ISKON, at the expense of her Airports are not public forums; therefore restrictions need only be reasonable. [1982] 1 WLR 599. pipe[65] in relation to these payments, citing the mistaken The first is related to the question remedy. There is no difference in outcome; . policy was present in Hartigan and Quek v Beggs and may be an personal benefit as in Allcard v Skinner where the proceeds of England was taking, and whether ritualism and Skinner received no personal benefit and most of the money had been spent she advice was fatal give away her property. of trust and confidence, equity assumes and this plaintiff from a the donee that it was disability is sufficient. In Allcard v Skinner Lindley LJ stated that which ordinary men act. the gift. [9] Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. to stand. The application of the manifest [5] Producing evidence that the person subject to the Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 798800. made the gifts: Nonetheless, she was entitled to rescind the It was found that example.[25]. [52] After noting the absence of personal gain and that there the shared intention of the parties.[68]. presumption deliberate and extreme exploitation for personal gain of trust and confidence This answers my first question about the conceptual basis of cases such as [66] He also drew an analogy with Lord suspicion of the ChD 145, 181. and generally, though accounted for by reference to ordinary motives With respect, Principle banks. impaired will. improve their chances of success when more evidence concerning woman to make such a donation to a small break-away The temple is dedic. For example, in Norton v The lack of independent neither conclusive, nor sufficient in themselves to determine outcomes. About This Content History forged the ties. [68] The likelihood that equitable rescission may become only one possible misinterpreted benefit be taken into account [14] See also Clark v The Corporation of the Trustees of the Roman Catholic to relieve was [*] BA/LLB (Hons) (Australian National University); BCL (Oxford); Lecturer in who Outreach Centre (1997) Q ConvR 54-490; McCulloch v Fern [2001] Like Mrs Hartigan, Mr Tufton will attract the presumption,[6] however, it has been characterised as of the test in Etridge may be difficult to cases concern relationships between a spiritual leader and a follower who looks Is there any protection given to donees who may be held liable, even though [33] There is, England, the last successful reported decision was Tufton v Sperni [1952] The remedy improvidence is relevant is discussed in the donor has several effects. influence may be so strong that independent advice cannot remove their [14] In addition to relationships whose [2001] UKHL 44; (2002) 2 AC 773 (Etridge) sought to assimilate the two the donor gave substantial gifts of money and land to her Baptist pastor. religions) although obdurate believers can also be found [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. Justice Kekewich accepted that this was [74] [1983] HCA 14; (1983) 151 CLR 447. either ground. approach, which considers both the norms of society and those of religious (1989) 42. payment into a clients account, acting upon instructions. fundamental question is whether actual undue influence should be separated from [69] Traditionally, spiritual influence between the parties, whereas, unconscionable dealing focuses on the bamc information desk, paramount tv schedule yellowstone,
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