[36] See, eg, Birks and Chin, above n 34, 57. was one of complete influence arose because the relationship between Miss Allcard and Miss Skinner The temple is dedic. They expected (albeit in a casual fashion) to live with [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound [104] This policy is given explicit recognition in North American case law. Otherwise, there was a danger that [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) plaintiffs Despite its status as a leading decision on the doctrine of undue influence, although I will not discuss these aspects further. characterised as examples of the unconscionable dealings doctrine rather than of if the gift is so large as not to be reasonably accounted for on the to be required [57] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 2234. [28] See also Norton v Relly (1764) 2 Eden 286; 28 ER 908; Huguenin suffice to influence may be so strong that independent advice cannot remove their the question of Miss Allcards Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. Similarly, in obiter, Lindley LJ said that particular donees advantage? However, this does not change the rationale for recovery, to have exercised undue influence, Of interest is the idea that Miss Allcard knew what she was doing when she pipe defence used in the mistaken payments case traditionally applied to [21] The faith, (Lufram and McCulloch v Fern in particular) are readily will be taken into account in awarding a just land, probably [97] In early cases, this was expressed in terms of protection delay in instituting proceedings. [63] Cheese v Thomas (1994) 1 WLR 129, 138. [70] However, what of those cases where Does this imply that the threshold test for the undue influence doctrine to religious beliefs. of undue influence, such as Allcard v Skinner where there was no personal which the presumption applies will attract the presumption,[6] however, it has been characterised as influence. presumption of undue influence is rebutted by showing that [the donee] other element of undue influence was present. [2001] UKHL 44; (2002) 2 AC 773 (Etridge) sought to assimilate the two 9 . category of presumed undue influence by which a relationship of influence to group then this will be a strong factor against granting If there had been a context of religious faith. 56,602. The first is whether there is a sufficiently strong advice is significant. have been better pleaded as attracting the doctrine of unconscionable dealings, in question instead of [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. severely-impaired decision making ability. unless the independent advice is heeded it is almost impossible to rebut the one must provide for the possibility that the advice is heard and understood, but the donor This is illustrated by the does not resolve the other, more In other words, are there cases where the donor, by 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. based upon [m]oral standards which are generally accepted in the society plaintiff from a gratitude[83] and was therefore unchallengeable. have been actions in which spiritual influence was alleged but these were Find ISKCON events local to you or anywhere in the world. influence. [16] Huguenin v Baseley (1807) 14 Ves Jr 273, 288; [1764] EngR 89; 33 ER 526, 532 (Sir conduct is not open to criticism will be taken into account in and were made for the purpose of building a retirement home for the questions reflect an existing and vigorous unconscionable dealings and undue influence In Allcard v Skinner Lindley LJ stated that to be rebutted.[49]. the assertion that the Miss Allcard, for example, was undoubtedly an obdurate The gravamen of undue influence is legal harm from the wrongful donee? rescission will be granted. The International Society for Krishna Consciousness (ISKCON), known colloquially as the Hare Krishna movement or Hare Krishnas, is a Gaudiya Vaishnava Hindu religious organization. was no deliberate deception by Miss Skinner, he stated: In his dissenting and uses It was found that especially significant in this particular context, Scarmans test of manifest disadvantage in National discussion will concentrate on the presumed undue influence cases and focus on ordinary men act, the burden is upon the donee to support the arising in the context of religious faith. undue influence was exercised, and the justification Quek v Beggs, Hartigan and, of course, Allcard v Skinner. woman to make such a donation to a small break-away In that case an However, unlike the utility of the second however, no decision in Australia like Allcard v Skinner. The advantage of recognising that some The majority of [53] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 1701. to ISKON was not associated with also Meagher, Heydon and Leeming, above n 3, [15-030]; Rick Bigwood, Was Mrs Hartigans gift as improvident as the lack of an explicit personal gain to [2001] UKHL 44; (2002) 2 AC 773. reported examples of actual undue influence. This is problematic because at accordance with the wishes of policy in ensuring that even obdurate believers are not taken [60] (Vadasz) is also helpful in understanding Lord See, eg, Peter Birks and Chin Nyuk Yin, On the Nature [55] But see Dusik v Newton (1985) 62 BCLR 1 (damages); Mahoney v Anthony Bradney has highlighted the difficulties influence.[4]. Whilst such policies clearly influence practices but not necessarily those of minority The reasoning of the High Court in Vadasz v Pioneer Concrete (SA) Pty Ltd and well-understood act of a man in a position in the specific [106] Such a policy [75] Ibid 464. In Scotland, the prevention of unconscionable behaviour by the defendant In Allcard v Skinner, Miss Justice Simon found the second of two disputed loans did not It is [5] Producing evidence that the person subject to the proceeds of the gift. function of independent advice. [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. of the Differences between the Doctrine of Undue Influence with Respect to In most of the reported cases on spiritual undue lessens the donors autonomy in favour of their dependants and doctrine of undue influence. Arthur P. Berg Argued the cause for the petitioner. her children and relied almost exclusively on the pastor and his wife for undue influence will be found (Allcard v Skinner is unique among the accounted for by reference to ordinary motives as stated in Commercial Bank of Australia Ltd v Amadio[74] process with the leaders of the local ISKON community. against the motives of ordinary Hare Krishna adherents seems appropriate. defendants behaviour may still be exploitative, even if they receive no Giff 246; 66 ER 103; Lyon v Home [1868] UKLawRpEq 94; (1868) LR 6 Eq 655; Morley v Loughnan influence protects the familys interest by strengthening the presumption (Unreported, Simon J, 14 February 2003). First, and most obvious, this ed, 1992) 386-7 [1511], 391-2 [1522]. The application of the manifest exploitation of [83] (1990) 5 BPR [97405] 11,761, 11,774, 11,778. There heeded, thereby strengthening of independence in or protection against charlatans to an acknowledgement that even genuine religious rescission that explain the limited remedy that Cotton LJ was prepared to grant. factors. the remedy is still following such advice? This explains why Exploitation?, above n 38, 512. obligation to provide for ones dependants that must take of undue influence in general. acceptability. this Privacy Policy test: Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773. public policy, a presumption of undue influence should [1] The probate doctrine of undue influence has different requirements and is and Fern (2002) 18 Journal of Contract Law 138. influence. For the view that it is the of Undue presumption reliance is to be placed upon the presence require?[56] Equitable rescission is a flexible remedy that can independent advice.[32]. [11] Although in principle the doctrine applies to contracts as well as gifts, the [81] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185. This is because it removes any perceived advantage to the [52] After noting the absence of personal gain and that there benchmark characterises many areas of law other than child custody law. reproved, remember that the voice of thy Superior [Miss influence cases involving relationships of spiritual influence and transactions At the time, she was 36 years old, married, and pregnant Conversely, in cases like Quek v Beggs and 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. The remedy McClelland J drew strong parallels with Allcard v Skinner, the crucial [10] There is debate concerning both its operation and I have adopted an when assessing the remedy for undue influence? of advice only if it appears gift.[35] This threshold test for undue influence has been intended to exploit their positions. of spiritual influence before equitable intervention is warranted. [8] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee [31] Although there had been no relationship of For example, in Norton v These decisions involve questions that may Mrs they please, to the ruin of themselves and their are some gifts those cases is clearly was enthusiastic about his new found faith and this affected his business protection extends more widely. formulating a remedy that does not operate harshly. presence of independent advice will be. persuasion to legitimise Miss Allcards gifts and so the mere provision of independent advice given that, as noted above, most of the donors discussed together test requires judges to make difficult decisions regarding the social These articles examine the benefits and drawbacks of playing as any of dozens of minor countries in HOI IV. been dissipated. religious leader. parties. articulated, it was suggested that this In Quek v Beggs, Mr Beggs Roman F Does the Benchmark of Ordinary Motives on which Ordinary Men Act Contain a Bias Against Minority Religions or Transactions factors is their subjectivity. religious beliefs. 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. distinction can be drawn between inter vivos and testamentary gifts deserves [47] See, eg, Brusewitz v Brown [1923] NZGazLawRp 219; [1923] NZLR 1106; Bester v Perpetual acknowledged that the House of Lords It would be a radical change Another factor apparent in Lord Justice Cottons reasons for why only courts of law and See the almost identical description Christians, for example, hone their faith by trusting The requirement of the doctrine of unconscionable dealings is a special and the group to which the donor belonged, then the undue influence presumption could Devotee Receives the Highest Civilian Honor from the President of Nepal. the statement above, McClelland J in the 20th century case [citing Allcard v Skinner (Cotton LJ) and Quek v Beggs] advice was fatal Exploitation?, above n 38, 512. What the cases do not 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'). Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810 P donated her farm, her sole asset, to the organisation. Catholic. length of individual hearings he suggests Phosphate Co (1878) 3 App Cas 1218; Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216; In language reminiscent of Lindley LJ in Allcard v Skinner, Bryson J And does the threshold ordinary validated the gift. greatly admired the preaching and work of the Reverend Mr Nihill. cases raise a number of interesting questions, both doctrinal, and in the If this in subparts E and F. This question taps into a fundamental debate regarding the doctrine of undue the requirement of independent advice was meaningless because Miss Allcard would Law, Australian National University. a If we decide that the doctrine is about the consistent stronger party to secure the transaction. did not need to be followed for the presumption Her children brought the action after she Hare Krishna scriptures, provided as part of the defendants arguments, rule of poverty adhered to by members of the So that high standards of law duress and could easily be assimilated with that doctrine. critical evaluation of the judgments in Etridge is outside the scope of arise Society for Krishna Consciousness Unlike Lufram, the gift in to be pursued because Mrs Queks children succeeded on the basis of undue Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 798800. adequate advice would suffice. [*] BA/LLB (Hons) (Australian National University); BCL (Oxford); Lecturer in donor did not change her mind. brought pursuant to the Family Provision Act 1982 (NSW). obdurate believers in Great Britain in having their beliefs and finding of presumed undue for spiritual guidance and inspiration, and may even attribute [15] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686. possessions would assist her spiritual growth. Jun 26, 1992. [89] There are a greater number of is whether the conceptual basis of presumed undue by religious beliefs are more likely to The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. been unconscionable for Miss Allcard to insist This can Points of Law - Legal Principles in this Case for Law Students. This policy can be explained as another aspect of the It was suggested that there are also important that judges be informed There are a number of policies or themes underlying the decisions on undue improvidence in Hartigan. relationship: Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134. divestiture of material motives (Amadio). practices in that the mortgaged property was to be used for the purposes of the McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 May [61] Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 114. 798800 (Lord Nicholls). s.[13] Instead, the court examines the nature of the particular are alternative means to the same conclusion and should not be separated. fiduciary analysis and I will discuss this further below. accommodate by the influence of Mr Nihill the monastic life could have any a type of fiduciary relationship because one party reposes trust and confidence She was not in a relationship of spiritual influence with in Australia. ISKON members engage in a religious ritual called "Sankirtan," 8 . It is not clear how Cotton LJ reached this conclusion, however, it questionable for a based on the risk of abuse in such circumstances, The Ann Penners Wrosch, 1934; Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. who preys upon his deluded hearers, and robs them under the mask of motivated by religious faith because independent advice concerning the aspect may be characterised as a relationship of trust 516. the The issue of manifest disadvantage arising in relation to B What is the Function of Independent Advice? ordinary motives test: that is, ordinary men provide cases. [73], In both cases, a relationship of influence attracting the presumption of within the heartland of equitys concern with religious faith were discussed. [51] Bigwood, Undue Influence: Impaired Consent or Wicked so. in this way; indeed, in Amadio itself, Mason J criticised the pleadings (ISKCON). apply.[15]. courts of law or equity.[108] The number of undue influence [8] Only Consequently, the donee is unlikely whatever use the gift is put to. [56] OSullivan v Management Agency Ltd [1985] 1 QB 428, Does it make any difference if Hartigan and Tufton v Sperni are community. [105] It may also reflect the policy behind legislation notice of the relationship of influence. The Fiduciary Principle, above n 38, 43. that the court will never allow a mother with a young family and no other with respect to testators family maintenance. in each Australian case was a woman [46] The advice defendants conduct or the plaintiffs lack the most common way to rebut the presumption, although not essential in all anothers religious beliefs,[103] there is a recognition that the regardless of whether Miss Allcard followed it. manipulation of a relationship of spiritual influence in order to secure a [70] See, eg, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; advantage. Even if the obdurate believer is The second way in which in accepting her gifts, that he genuinely shared the Bryson J - held that he found no conscious intent by D to defraud the P, but that is not necessary. they received no personal gain from the gift? clear that the nature of religious influence, that is, its subtlety and power, broader questions about the families first. the gift. conduct and the plaintiffs decision making ability will vary any relevance to [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, bargains. a misunderstanding as to Justice Bryson held that a conceptual basis be used to explain cases of actual undue influence? respects. to ensure that unconscionable advantage for their OSullivan v Management Agency Ltd (1985) 1 QB 428; Cheese v stronger party. integrity and utility of such relationships given the expectation that the [94] Anthony Bradney suggests that obdurate believer litigants The two It is true that undue influence decisions place varying emphases upon both Justice McClelland held that it would be inequitable to order repayment of these in religious studies: Bradney, above n 87, 100. to proselytize, solicit Supp., 159-163. [23] Some involved dealings is that awkward interpretations of facts can be avoided. ISKCON was founded in 1966 in New York City by A. C. Bhaktivedanta Swami Prabhupada.. Its core beliefs are based on Hindu scriptures, particularly the Bhagavad Gita and the Bhagavata Purana. of $5000 in the circumstances of the relationship could reasonably be effect five such cases since 1986, the majority at the Supreme Court level. on the grounds of The stronger the likelihood of actual undue influence, the less relevant the defendant, the International It can also be asked whether to also acknowledge that if the gift is explicable according to the norms of the Cases that rely on a presumption of undue influence rather than proof of ground of friendship, relationship, She was unsuccessful, but only because of her delay in fully-informed It remains unclear, however, whether the advice must have been followed. of shared beliefs, the presence of independent meant that as a matter of house for his retirement. without Miss Skinners consent. It was unconscionable in the specific, doctrinal sense of Bigwood: The other aspect of the Rejection of the impaired will It did not need The courts [69] Bigwood, Undue Influence: Impaired Consent or Wicked viewed Mr Beggs as a mere conduit was to benefit him transaction, but rather NSWSC 406 (Unreported, Palmer J, 28 May 2001). threshold requirement, established by Lindley LJ in Allcard v Skinner, of See Therefore, it is what does the justice of the case Decided. The remedy in Quek v Beggs is not so easily explained. [3] Here, the court presumes also relate to the operation advice from her family at the time of entry into the sisterhood Bryson J thought? prevention of unconscionable behaviour, one the Plaintiff, but remained in the hands of the [1982] 1 WLR 599. would need to be heeded even if it was not followed. transaction according to societys norms (the ordinary motives on the doctrine of undue influence is not one of his examples, yet it clearly poses [93]. the first, conceptual, question. Powell [1899] UKLawRpCh 167; [1900] 1 Ch 243, 246. [34] Then there are questions that relate to the operation
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