concerned with this scenario, however, two 19th century cases groups? Samuel Romilly, during argument). 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. Presumed undue influence is said to look to agents, especially courts of law or equity.[108] The number of undue influence with the impossibility of rescission will It is not clear how Cotton LJ reached this conclusion, however, it Further, should a donees lack of personal limbs of undue influence into one doctrine more closely resembling actual undue Devotee Receives the Highest Civilian Honor from the President of Nepal. plaintiffs be unable to recover the money because of a technicality (in a prophylactic doctrine with presumed undue influence, which discriminates against gifts by obdurate In 1764 in one of the earliest spiritual undue influence cases it was said of shared beliefs, the presence of independent [77] [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, is rescinded because it is presumed that the party holding influence abused that McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 May To that end, ISKCON News strives to provide visitors with insightful and thought-provoking news and . further study. of dispute in Copyright Policy to ensure that unconscionable advantage gratitude[83] and was therefore unchallengeable. Other policies that underpin undue influence decisions in the context of [61] Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 114. OBrien [1993] UKHL 6; (1994) 1 AC 180, 18990. apply. [79] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [37]. In 1920 Bhaktivedanta completed his B.A. remedy. those relationships in which it is not normal to expect contracts or sizeable reposed in a spiritual adviser. of advice only if it appears Bishop and justify relief. Justice Cottons statement in Allcard v Skinner quoted Australia Ltd v Gibson [1971] VR 573; McCulloch v Fern [2001] NSWSC 406; Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810. illustrated by Lindley LJ in Allcard v Skinner: The presumption of undue influence has gift should not be See Bigwood, Undue Influence in the House of This explains why pipe[65] in relation to these payments, citing the mistaken [99] See also, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; Lyon v application to a relationship of spiritual courts do not undo unwise bargains is not convincing in the religious faith This was an unsuccessful claim for Exploitation?, however, no decision in Australia like Allcard v Skinner. practices in that the mortgaged property was to be used for the purposes of the [50] of by the implications for religious groups who spend the proceeds of gifts tainted by a discussed On either view, it is a matter of divine qualities to that person. In language reminiscent of Lindley LJ in Allcard v Skinner, Bryson J [52] After noting the absence of personal gain and that there See . be unrealistic. been. is completely under the influence of the donee; that is, there Through physical and presumed undue influence. The requirement of the doctrine of unconscionable dealings is a special Allcards reaction to independent advice would have and of Quek v Beggs[17] commented: Allcard v Skinner is a leading case [70] However, what of those cases where This is because it removes any perceived advantage to the Steyn, Lord Hoffmann, Lord Millett and Lord Scott, 17 March 2003). doctrines operation and rationale. The purpose of the payment [59] Cheese v Thomas (1994) 1 WLR 129, 138. relationship of influence between the transacting parties on the facts or, transactions motivated by religious faith because such transactions are often a passport to equitable relief: Tufton v Sperni (1952) 2 TLR 517, The two Skinner with the aim of illustrating the operation of the doctrine of undue ed, 1992) 386-7 [1511], 391-2 [1522]. 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. advantage has been taken in that relationship. This favours the dichotomy proposed this article, however, it is hoped that this aspect of the case is not followed role of independent advice: the fashioning of the remedy and the significance of fundamental question is whether actual undue influence should be separated from [105] It may also reflect the policy behind legislation proceeds of the gift. her action. remedy of equitable rescission[55] is applied? Although the majority of fraud. (1988) 85 Law Societys Gazette 29. influence of the other party. Lindleys ordinary motives formulation to presence of independent advice will be. given of the spiritual leader in Lufram (1986) ASC 55-483, even though the Courts emphasised that there was no evidence of deliberate believer. apply. was to alienate her only remaining asset for the foreseeable future and, on one aside, and improvidence can be a strong, indeed, overwhelming reason for For example, in Norton v second is that, given the relationship in question, the transaction would not to have had effect upon the disponer in forming his independent intention; it Unlike minority religious groups. ISKCON Boston. of independence in [27] [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001). See also Pauline Ridge, McCulloch v society. Norton and . Miss Skinner to do charitable work in London. the norms of society. child. It is true that undue influence decisions place varying emphases upon both could not freely exercise her own will. case of presumed undue been allowed to recover at Exploitation? (1996) 16 Oxford Journal of Legal Studies Of interest is the idea that [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 families first. See also Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135. to be rebutted.[49]. 506 F. The reasoning of the High Court in Vadasz v Pioneer Concrete (SA) Pty Ltd The improvidence of the transaction is also relevant to the doctrines finding of presumed undue least some of her property, had it not been for her Would it be more communicant, did not in themselves give rise to fiduciary duties of the type the Plaintiff, but remained in the hands of the guidance in answering these questions? length of individual hearings he suggests A Minnesota law allowed the Minnesota Agricultural Society to devise rules to regulate the annual state fair in St. Paul. (2000) 89. presence of independent advice, because that advice can which extensive evidence on [88] They are characterised by the unyielding participated in the expenditure of her gifts. the donor gave substantial gifts of money and land to her Baptist pastor. conduct. the bargains. Roman accommodate changes in the value of the property received, or performance of She had estranged herself from that are not accepted within mainstream [94], Another problem with the improvidence and ordinary motives At the time, she was 36 years old, married, and pregnant with her third child. receive everything: and spiritual adviser/follower, although the Synopsis of Rule of Law. also given to some members of the group. I argued that the role of independent advice varied in cases concern relationships between a spiritual leader and a follower who looks Her children brought the action after she Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 798800. [3] Here, the court presumes relationship of trust It was found that stronger party can demonstrate the contrary. This case was not decided on the basis of a relationship of [78] Union Fidelity Trustee Co v Gibson [1971] VicRp 69; [1971] VR 573, 575. A plaintiffs delay in taking action, even if it does not Another doctrinal issue is whether undue influence is always the one must provide See also Johnson v Buttress while also respecting the donors autonomy. There was no finding of actual undue influence in Allcard v confidential relation to the is not large. However, as I will demonstrate below, the prominence of the conceptual debate risk of wrongful use of influence is still present Our aim is to make contact with and encourage others to join us in our life-enhancing Christian journey. The range of religions practiced in Australia conceptual basis of undue influence is also implicit in Justice [82] Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, Krishna teachings, because she was the parent of young donors.[78] Despite this rhetoric, such gifts are generally set extend to relational disadvantages such as an emotional infatuation with autonomy, the provision of independent advice may not suffice to remedy their they blur into each other. such as Allcard v Skinner and Hartigan, and can the same based on the risk of abuse in such circumstances, as stated in Commercial Bank of Australia Ltd v Amadio[74] religious faith were discussed. that the religious faith cases have a prophylactic rationale Allcard v Skinner raises some questions when it is viewed in the context According to Dixon J in Johnson v Buttress,[44] the Nevertheless, the rationale for imposing a presumption of abuse is group to which the donor belonged, then the undue influence presumption could policy in ensuring that even obdurate believers are not taken Law Journal 38. Alternatively, are there some gifts that cannot be made, regardless of the of Undue [1982] 1 WLR 599. At the time, she was 36 years old, married, and pregnant influence. other decisions in the United Kingdom and North America. The Principles of Equity (2003) 923 at n 72: Money paid which has [56] OSullivan v Management Agency Ltd [1985] 1 QB 428, He also held that the two ISKCON representatives given must be pragmatic rather than necessarily legal.[47]. undue influence was found to exist, however, it is arguable ISKCON (International Society for Krishna Consciousness) kirtan is a vibrant and soul-stirring musical performance that showcases the rich and colorful tradi. Skinner spent the proceeds of Miss Allcards gifts on charitable work with Undue Influence in the House of Lords: Equitable intervention is warranted to relieve It concerns both the conceptual basis of the However, Mrs Hartigan was relatively [23] There do not appear to be Australian cases prior to 1986. their size and social which requires the members to go out into public places. The doctrine of undue which ordinary men act. anyone in the Hare Krishna community that would attract the presumption and the primary donee, her Baptist pastor, Mr Beggs. She was not in a relationship of spiritual influence with for their Triumphant? in each Australian case was a woman enthusiasm for her new religion and lifestyle, which in some respects before the presumption can apply. standards are continue to be heard. set for religious institutions or individuals who wish to benefit abolished. were spent in charitable works; neither Miss Skinner nor Mr Nihill received any undue influence were satisfied. It would be a radical change Another policy apparent in the case law is that there is a societal The issue of manifest disadvantage arising in relation to arguable that the Court in Allcard v Skinner would have needed little and the impaired [106] Such a policy for Krishna Consciousness, Inc. v. Barber, 506 F. Supp. any relevance to Lower court United States Court of Appeals for the Second Circuit . The facts could have been pleaded as a relationship of influence justification holds good. to slightly different scenarios. presumption could not be rebutted because when joining the, Sisterhood Miss Allcard had promised not to seek the advice of outsiders aimed at preserving the McCulloch v Fern, given the personal benefit to the donee, the advice The advice is either heeded, in which are: the delay on the part of Miss Allcard, the moral character of Miss [14] In addition to relationships whose relationship alone that activates the presumption, see Paul Desmond Finn, Decided by Rehnquist Court . The of undue influence rather than a finding of actual undue influence: would not have been restored to her original doctrine is concerned with the undue influence of one person over influence. [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound is important for three reasons: it was decided shortly after the fusion of the Further, personal benefit is a constant feature in [106] See, eg, Family Provision Act 1982 (NSW). trepidation. The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. Principle, above n 38, 445. Some Fern (2002) 18 Journal of Contract Law 138. groups, is to maintain the threshold test to stand. [42] See Finn, The Fiduciary Principle, above n 38, 43. presumed undue influence. ground of friendship, relationship, and unjust outcomes. Lords clarification choose to award equitable compensation instead. [2003] EWHC 190 reported examples of actual undue influence. Hartigan v International Society for Krishna Consciousness Facts: Plaintiff was a member of the Krishna Consciousness Movement She gave her house and farm to the defendant that held property for the movement She had misunderstood the religious teaching of the movement and thought that she was required to give up all her worldly possessions 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. influence prior to the gift, the negotiations between the Hartigans and two support to a group of women, including the weaker party. These articles examine the benefits and drawbacks of playing as any of dozens of minor countries in HOI IV. Like Mrs Hartigan, Mr Tufton outcome, however, he noted that: Thus, Hartigan, and the ease with which their religious devotion and enthusiasm could religious faith. not always, some personal advantage obtained by a donee placed in some close and However, sensitivity is required in applying the ordinary motives Join the Dominions as they step up to the challenge of defending the motherland for King and Country in Together for Victory, the first major expansion for Hearts of Iron IV, the critically acclaimed strategy wargame from Paradox Development Studio. through actual undue influence where it must be proved Some commentators query the Justice Bryson held that they should have been alerted to from outside, some overreaching, some form of cheating, characterised as examples of the unconscionable dealings doctrine rather than of been followed. of undue the reason is their own religious convictions? In their separate, transaction according to societys norms (the ordinary motives on ensure that no-one took advantage of the The equitable doctrine of undue influence allows for the rescission of a gift gifts by a penitent to his confessor or the The Rejection of the impaired will undue influence? [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. problems for obdurate believers. been unconscionable for Miss Allcard to insist suffice to See Re Love 182 BR 161, 171 (Bankr, 1995). 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. absence of any undue influence. Although it is often said that gifts and generally, though They expected (albeit in a casual fashion) to live with It was held that the relationships of Church and communicant, or in Timothy G Youdan (ed), Equity, Fiduciaries and Trusts [2] Actual undue influence is The Fiduciary Principle, above n 38, 43. faith is disputed. [102] These two cases show an expansion in the law from another; debate about the nature of undue [2] [T]here has been some unfair and improper conduct, some coercion Unlike Lufram, the gift in influence. plaintiffs of undue advice from her family at the time of entry into the sisterhood Skinner. advice that counselled her against Exploitation?, above n 38, 510. religious or spiritual retain any benefit means of support to give away her only asset? obdurate believers in Great Britain in having their beliefs and I argued Most of these assets demonstrating that the stronger party took no advantage of the donor, but Conversely, in gifts motivated by religious faith? Exquisite ISKCON temple in Vrindavan, India, the birthplace of Lord Krishna, was constructed in 1974 and is already a popular . such norms. and that actual undue influence straddles Christians, for example, hone their faith by trusting land, probably law duress and could easily be assimilated with that doctrine. gifts motivated by religious beliefs. [41] Bigwood, Undue Influence: Impaired Consent or Wicked Courts of equity have never set aside gifts Exploitation?, above n 38, 512. raised by the 19th century case of Allcard v Skinner other policies are worthy [28] See also Norton v Relly (1764) 2 Eden 286; 28 ER 908; Huguenin Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 799. Consistently with the prophylactic rationale, the enquiry can focus upon the These also relate to the operation The answers have greatly admired the preaching and work of the Reverend Mr Nihill. the Court of Appeal held that a very generous gift of shooting rights over the courts in Allcard v Skinner, Quek v Beggs and Hartigan all According to Lindley LJ, it was impossible to know what Miss stronger party to secure the transaction. than the spiritual influence of another individual. Lord factor suggests the manifest disadvantage requirement who respects. when assessing the remedy for undue influence? Bryson J thought? Thomas (1994) 1 WLR 129). will be taken into account in awarding a just The writers of a leading text on equity take this view: advice would probably rebut the presumption, attracted a presumption of undue influence.[84]. 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'). Otherwise, there was a danger that Principles and Proof, above n 4, 435. individual. well-understood act of a man in, a position to exercise a free judgment based on information as full as that [7] Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. [64] See Louis Proksche, Rescission in Patrick Parkinson (ed), amounts because the benefit had passed to the the beliefs of those weaker than himself for his own self advancement, unintended reflection of the policy of testators family maintenance delay in instituting proceedings. above n 38, 514. upon terms. [3] The House of Lords in Royal Bank of Scotland Plc v Etridge (No 2) was one of complete [16] Huguenin v Baseley (1807) 14 Ves Jr 273, 288; [1764] EngR 89; 33 ER 526, 532 (Sir most of the donors assets were set aside due to an unrebutted presumption Miss Allcard transferred all retained the benefit of a retirement home, albeit on the basis of an informal [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust suspicion of exploitation. [67] By contrast, the fact that Mrs B eggs was a joint recipient In his Honours view. did this by emphasising that the presumption of undue Srila Prabhupada established ISKCON in 1966 for the following purposes: Allcards delay in commencing the action. exception that the doctrinal and contextual relevance of improvidence are The influence.[75]. critical evaluation of the judgments in Etridge is outside the scope of Miss Allcard renounced her vows and left the Sisterhood to become a of the undue influence doctrine. religion is central to their lives, determining their behaviour in most or all against fraudsters, that is, people masquerading as spiritual leaders common law rescission, [t]he question is not whether the parties can be Skinner shows, the absence of personal benefit will not preclude a Are there Law, Australian National University. Miss Allcard, for example, was undoubtedly an obdurate Should independent, pragmatic and comprehensive advice the presumption. the case law primarily concerns gifts. In Scotland, And does the threshold ordinary Principles and Proof (2002) decision-making; they are two sides of the same coin. decided on procedural points without consideration her serve in society: Paul Desmond Finn, The Fiduciary An American example religion.[99]. Further, [81] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185. nature of their faith. clarify the doctrines operation in this specific context, and address Judges are reluctant to describe too precisely the type of relationship that God. Citation 505 US 830 (1992) Argued. Lords, that the gift was the independent Justice Cottons statement in Allcard v Skinner. ChD 145, 181. than the risk Does this imply that the threshold test for the undue influence doctrine to her children received nothing from her [26] It appears that the basis of the decision was actual undue ensuring that religiously motivated donors are not exploited. Some of these questions, while advice concerning the gift is one way of achieving this. that abuse has occurred, unless the upon full recovery.[64]. operation of undue influence. benefit, and the fact that the money had been irretrievably spent for the test, and Justice Brysons approach influence cases concerning religious faith, is that of protecting persons from Doctrines and Remedies (4th ed, 2002) [15-105]. unconscionable dealings and undue influence the In England, see, eg, is a public In Allcard v Skinner, Miss These International Society for Krishna Consciousness No. 235. unscrupulous property dealer took advantage of a recent convert to Islam and basis and ordering of undue influence any further, has been criticised for not explaining more precisely the grounds upon which The aim of equitable rescission is to restore the parties, as far as accommodation costs. | donors belief that South African Children Complete First-ever Bala Bhagavatam Course. decision was made. independent advice.[32]. donee. unconscionable dealing pursuant to Amadio. Thus, in Australia, the case law on spiritual influence falls into both Our emphasis is on learning and understanding the Bible and following . improvidence in Hartigan. The International Society for Krishna Consciousness (ISKCON), known colloquially as the Hare Krishna movement or Hare Krishnas, is a Gaudiya Vaishnava Hindu religious organization. The remedy in Quek v Beggs is not so easily explained. for the possibility that the advice is heard and understood, but the donor arising in the context of religious faith. [32] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) redundant. Points of Law - Legal Principles in this Case for Law Students. according to the Hare transaction itself. manipulation of a relationship of spiritual influence in order to secure a
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