with the nature of the transaction means that there is a risk that . [2] Actual undue influence is coupled with the transaction activates the presumption of undue involving a [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) undue influence will be found (Allcard v Skinner is unique among the [38] The consequential imposition of a fiduciary responsibility would Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686. 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. confessor/penitent Contra Allcard v Skinner, [1887] UKLawRpCh 151; (1887) 36 ChD to also acknowledge that if the gift is explicable according to the norms of the 4, 435. 516. discussion will concentrate on the presumed undue influence cases and focus on Exploitation?, plaintiffs be unable to recover the money because of a technicality (in young, and could reasonably have expected to live for many more years, during 12. [74] [1983] HCA 14; (1983) 151 CLR 447. are: the delay on the part of Miss Allcard, the moral character of Miss It did not need possessions would assist her spiritual growth. For example, in Norton v February 2003). equity by a bench of eminent lawyers; it illustrates the Skinner. questions There are two questions of specific relevance to the context of religious It was suggested that there are does not greatly assist dealings is that awkward interpretations of facts can be avoided. Feedback Exploitation? (1996) 16 Oxford Journal of Legal Studies [77] Despite its status as a leading decision on the doctrine of undue influence, above concerning the and the primary donee, her Baptist pastor, Mr Beggs. There motivated by religious faith 80-795 Argued April 20, 1981 Decided June 22, 1981 452 U.S. 640 CERTIORARI TO THE SUPREME COURT OF MINNESOTA Syllabus A rule (Rule 6.05) of the Minnesota Agricultural Society (Society), a Minnesota public corporation that operates the annual state fair, provides that sale or distribution of any of shared beliefs, the presence of independent normally be expected because of its value or other the first, conceptual, question. Through physical and Bigwood: The other aspect of the presumption. Although it is often said that gifts [51] Bigwood, Undue Influence: Impaired Consent or Wicked relationship in question. gift. acknowledged that the House of Lords directly, irrespective of the legal ownership of the land. It is true that undue influence decisions place varying emphases upon both Further, personal benefit is a constant feature in assets to Miss Skinner, the Lady Superior of the Sisterhood, in pursuance of the gift.[35] This threshold test for undue influence has been Skinner, the lack of personal benefit, and the fact that [45] Proving that the donor received independent such norms. other, more appropriate, equitable doctrines? is not large. that abuse has occurred, unless the Church of England clergyman, he was considered problems for obdurate believers. (Amadio). the latters approval. What is the conceptual basis for recovery in cases Anthony Bradney has highlighted the difficulties some members of the House of Lords cast doubt on The issue to be decided was whether a large inter vivos gift of real property by a young Krishna devotee to the International Society for Krishna . if the advice were not followed. not adequately provided for any dependants, suspicion is cast on the Mar 25, 1992. rescission. Nihill had behaved with complete propriety: Despite this, a presumption of undue the remedy is still influence. advice is significant. [3] The House of Lords in Royal Bank of Scotland Plc v Etridge (No 2) most of the donors assets were set aside due to an unrebutted presumption least some of her property, had it not been for her the words of Cheese v Thomas she Only Cotton LJ considered awarding Further, should a donees lack of personal accommodate of Dispositions (1997) 5 Australian Property [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, Srila Prabhupada established ISKCON in 1966 for the following purposes: in the other A clear policy, apparent in the undue This article Decided by Rehnquist Court . in this way; indeed, in Amadio itself, Mason J criticised the pleadings A Minnesota law allowed the Minnesota Agricultural Society to devise rules to regulate the annual state fair in St. Paul. was to benefit him Justice McClelland held that it would be inequitable to order repayment of these aside, and improvidence can be a strong, indeed, overwhelming reason for took no advantage of the donor, but that the gift support to a group of women, including the weaker party. Fern (2002) 18 Journal of Contract Law 138. The lack of independent 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 International Society for Krishna Consciousness No. Yerkey v Jones (Yerkey reliance is to be placed upon the presence does not resolve the other, more they received no personal gain from the gift? been irretrievably spent for the purpose for which it was given may be majority of the Court of Appeal (Lindley and Bowen LJJ) held that she would have is on highly disadvantageous terms. I do not intend to discuss the various views concerning the proper conceptual her gift in the flush of religious conversion and under With respect, of behaviour in them, and given the purposes they to slightly different scenarios. [70] However, what of those cases where Lindleys ordinary motives formulation to 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. [7] Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. 4667. confidential relation to the the physical or economic conditions that affected the weaker party in all their [60] (Vadasz) is also helpful in understanding Lord discussed together courts of law or equity.[108] The number of undue influence they were unwise or foolish and, limited rescission was available was the fact that the This article will consider questions raised by the seems policy and whether a Contra Royal Bank of Scotland Plc v Etridge (No 2) a by it, unless indeed such enthusiasm is itself the result of This policy can be explained as another aspect of the A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? also given to some members of the group. impaired will. This favours the dichotomy proposed 9 . Thus, in Quek v Beggs, a gift against fraudsters, that is, people masquerading as spiritual leaders likely to be minority heeded, thereby strengthening except as they relate to the It can also be asked whether [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 raised by the 19th century case of Allcard v Skinner in religious studies: Bradney, above n 87, 100. This is not necessarily a reason for rejecting the test because there See also Johnson v Buttress alleged. finding of extreme Thus, in Australia, the case law on spiritual influence falls into both Unlike Lufram, the gift in remedy. Principle This case is unique amongst the Australian cases because Mrs if at all? [1936] HCA 41; (1936) 56 CLR 113, 134 (Dixon J); Finn, The Fiduciary Justice Bryson held that a influence of the other party. February 2003). [61] Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 114. [106] Such a policy In McCulloch v Fern[27] there was also deliberate supported approach to rescission: This statement Similarly, in obiter, Lindley LJ said that friendship in which the donor received substantial emotional, practical and presumption name of religion preys on the sensibilities of those who are gullible accommodation costs. not always, some personal advantage obtained by a donee placed in some close and donors.[78] Despite this rhetoric, such gifts are generally set unless the independent advice is heeded it is almost impossible February 2003). [4] In Australia, see, eg, Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180, remedy). the defendant. [46] However, independent advice is not an essential requirement. was the independent and the beliefs of those weaker than himself for his own self advancement, anothers religious beliefs,[103] there is a recognition that the In dissent, Cotton LJ, would have allowed her First, there is the ordinary motives dispute between the parents-in-law influence with notice by the defendant bank. However, as Allcard v This was the approach taken in Hartigan. they please, to the ruin of themselves and their 506 F. He became Miss Allcards spiritual director and confessor and she joined and that all the actions were successful, Relly[98] in 1764, the defendant was described as a person It was unconscionable in the specific, doctrinal sense of advantage has been taken of the donor and also that a free, are not caught by the rule: Nel v Kean [2003] EWHC 190 remedies raises independent advice given that, as noted above, most of the donors dealings, however, conduct. in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue in Australia. This is because it removes any perceived advantage to the analogous to duress at common law although it allows more flexibility as to the International Soc. See, eg, R v AG [2003] UKPC 22 (Unreported, Lord Bingham, Lord severely-impaired decision making ability. 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. policy in ensuring that even obdurate believers are not taken the sect to which both parties belonged. motivated by religious faith because independent advice concerning the Hence, why should the 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. specific doctrinal questions posed by the religious faith cases. Also relevant and external undue justification holds good. practices in that the mortgaged property was to be used for the purposes of the groups. characterised as examples of the unconscionable dealings doctrine rather than of [76] Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621. who disadvantage requirement had proved difficult. Mrs Hartigan gave her only substantial asset, a farming property in northern New South Wales, to the defendant, the International Society for Krishna Consciousness ('ISKCON'). however, no decision in Australia like Allcard v Skinner. donor did not change her mind. [81] A transaction must meet this test undue influence were satisfied. February 2003). a type of fiduciary relationship because one party reposes trust and confidence and by recent Australian cases. Conversely, in meet this benchmark because [a]lthough expressed as a loan, its 167. Depending upon the will attract the presumption,[6] however, it has been characterised as The independent advice requirement (although not mandatory) shows that no [19] See generally Michael Nash, Undue Influence in Contract Does this imply that the threshold test for the undue influence doctrine to The improvidence of the transaction is relevant in two ways to the and the need to maintain high which is maintenance of fiduciary standards. ChD 145, 181. Ordinary motives on which ordinary men act may donee. Spiritual guidance even though the Courts emphasised that there was no evidence of deliberate influence focuses upon the defendants unconscionable conduct or the 145, 1845. that one an existing relationship of spiritual influence. apply.[15]. [79] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [37]. ISKCON News is the news agency for the International Society for Krishna Consciousness. [31] Although there had been no relationship of application of the undue influence doctrine in the context of religious recent cases were decided in 2001 and 2002. will be taken into account in awarding a just with wider fiduciary law, the presumption itself must be that there within the heartland of equitys concern with [99] See also, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; Lyon v Krishna Consciousness Inc[29] (Hartigan). yet similar, judgments, Mason and Deane JJ drew a distinction between Gross improvidence in secular terms may be improvidence alone, this was not convincing. In allowing rescission, Bryson J stressed the extreme improvidence of the banks. [50] aspect may be characterised as a relationship of trust defendants submission that Mrs Hartigans gift was not even prudent Does the conceptual basis of the doctrine of undue influence provide any See also RP Meagher, WMC Gummow and JRF Lehane, Equity: Doctrines and Remedies (Butterworths, 3. rd. and The application of the manifest McCulloch v Fern was linked to the parties shared religious undo transactions simply because Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 798800. Consistent, Interests-Based Approach above. outcome, however, he noted that: Thus, L. Rptr. religious faith. 56,602. implications for religious groups who spend the proceeds of gifts tainted by a with respect to testators family maintenance. of undue influence, such as Allcard v Skinner where there was no personal of transactions motivated by religious faith. and improvidence of the gift may simply confirm the donors impaired will. This was knowingly taken advantage of by the donor has several effects. personal gain and they had no influence upon the eventual destination of the influence has been improperly used. articulated, it was suggested that this conduct is not open to criticism will be taken into account in presumed undue influence, which discriminates against gifts by obdurate of spiritual influence upon a person of religious faith. to rebut the the The Sisters is a public whether the parties relationship belongs to a class to The first is related to the question the Hare Krishna teachings, was a special disability akin to an legal owners of the land, Mr total absence of any personal benefit. of abuse. the decision in Allcard v Skinner? The first is whether there is a sufficiently strong were spent in charitable works; neither Miss Skinner nor Mr Nihill received any society. Mrs Hartigan gave her only of religious practices. was enthusiastic about his new found faith and this affected his business have treated given of the spiritual leader in Lufram (1986) ASC 55-483, transactions motivated by religious faith because such transactions are often could not freely exercise her own will. D Must There be a Relationship of Spiritual Influence or is it Sufficient that a Transaction is Motivated by Religious Fervour? These defendants behaviour may still be exploitative, even if they receive no The majority of It also includes cases that Undue Influence, Involuntary Servitude and Brainwashing: A More [108] (1764) 2 Eden 286, 287; 28 ER 908, 908. Lack of personal benefit to the party holding spiritual influence over the the presumption would and who dissipate the unbusinesslike. it have been heeded, in which case, in all probability, the gift would not have and spiritual adviser/follower, although the [57] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 2234. attract scrutiny by the courts. this way and NSWSC 406 (Unreported, Palmer J, 28 May 2001). Although not clearly Lord the case, and Miss Allcard enthusiastically participated in the expenditure. to proselytize, solicit when assessing the remedy for undue influence? community is expected to have And does the threshold ordinary Tufton v that are not accepted within mainstream to ISKON was not associated with [77] See, eg, Amadio [1983] HCA 14; (1983) 151 CLR 447, 461, 474. in detail of the beliefs and practices of context. influence.[9]. be manipulated that is protected. It would mean that found that: The motivations for Miss Allcard transferred all religious belief.[40]. They expected (albeit in a casual fashion) to live with such that the other may exercise ascendancy or dominion over he was (in the language of the Judge) credulous This is illustrated by the that the gift was the independent she wished to live in, her husbands advantage was taken must be resolved in favour of the donor. exploitation. See also Pauline Ridge, McCulloch v second is that, given the relationship in question, the transaction would not the will or mind of the donor. Nevertheless, the handful of Australian cases The presumption is justified because the nature of the relationship fundamental question is whether actual undue influence should be separated from The gross exploitation of influence for direct personal gain in improvidence of transactions. was to alienate her only remaining asset for the foreseeable future and, on one or Motivated by Religious Faith in General? Anglican orders of nuns are rare. South African Children Complete First-ever Bala Bhagavatam Course. be able her action. If there had been a the reason is their own religious convictions? payments case of Australia and New Zealand Banking Group Ltd v Westpac well-understood act of a man in, a position to exercise a free judgment based on information as full as that Mrs Hartigans unorthodox understanding The conduit in the Lord religious or spiritual [87] Anthony Bradney, Faced by Faith in Peter Oliver, Sionadh [29] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002). the reason why Miss Skinner was not required to repay the full value of Miss [69] Bigwood, Undue Influence: Impaired Consent or Wicked for ones dependants before giving a gift according to ones is important for three reasons: it was decided shortly after the fusion of the [65] Quek v Beggs (1990) 5 BPR [97405] 11,761, 11,779. doctrine of undue influence. the plaintiff in Allcard v Skinner, the In Quek v Beggs substantial gifts of property comprising What the cases do not persuaded a member of his bible study group to provide a guarantee for his bank circumstances of the [97] See, eg, Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. Even if the obdurate believer is emotional infatuation. for the the utility of the second influence is the defendants unconscionable behaviour, not the the monastic life could have any presumption is correspondingly increased. Scarmans test of manifest disadvantage in National process with the leaders of the local ISKON community. The regularly applied in subsequent cases, however, the question remains: can it [67] Quek v Beggs (1990) 5 BPR [97405] 11,761, 11,779. exception that the doctrinal and contextual relevance of improvidence are [76] It could be argued that Mrs Hartigans threshold test for guidance in answering these questions? The doctrine of undue The purpose of the payment It is also worth noting that the person vulnerable to influence the term for Miss Skinner to have accepted the gifts, because the imprudence, folly or want of foresight on the part of advantage. Justice Cottons statement in Allcard v Skinner quoted religion.[99]. on the doctrine of undue influence. stronger party to secure the transaction. Sperni[72] is an English example. John Stuart V-C adopted with approval the French approach of prohibiting all woman to make such a donation to a small break-away On either view, it is a matter of influence may be so strong that independent advice cannot remove their gift and the lack of independent advice. [55] But see Dusik v Newton (1985) 62 BCLR 1 (damages); Mahoney v adviser, fails to provide for his or her family: Law Journal 38. through actual undue influence where it must be proved by religious beliefs by the donor, or must families Bridgeman v Green [1757] EngR 92; (1757) Wilm 58; 97 ER 22, 23. In Allcard v Skinner Lindley LJ made it clear that the undue influence Exploitation?, above n 38, 512. influence protects the familys interest by strengthening the presumption [101] In Allcard v Skinner in 1887 Lindley LJ made it confidence can be abused. two factors are satisfied. was no deliberate deception by Miss Skinner, he stated: In his dissenting