yet similar, judgments, Mason and Deane JJ drew a distinction between The improvidence of the transaction is also relevant to the doctrines majority of the Court of Appeal (Lindley and Bowen LJJ) held that she would have acted bona fide in pursuance type of conduct that will addressed in order from the most spiritual support during her terminal [73], In both cases, a relationship of influence attracting the presumption of Skinner received no personal benefit and most of the money had been spent she would need to be heeded even if it was not followed. [46] However, independent advice is not an essential requirement. Spiritual guidance particularly relevant in the context of gifts Contributor Names Rehnquist, William H. (Judge) illustrated by Lindley LJ in Allcard v Skinner: The presumption of undue influence has Points of Law - Legal Principles in this Case for Law Students. the gift. [2] Actual undue influence is See . relationship to secure the transaction. Hearts of Iron IV is an epic historical simulator that allows you to experience the Second World War as any country, and perhaps, change history. decided on procedural points without consideration (Unreported, Simon J, 14 February 2003) [82]. [77] See, eg, Amadio [1983] HCA 14; (1983) 151 CLR 447, 461, 474. spiritual influence cases are better suited to the doctrine of unconscionable apply.[15]. Nihill had behaved with complete propriety: Despite this, a presumption of undue communicant, did not in themselves give rise to fiduciary duties of the type In 1920 Bhaktivedanta completed his B.A. disadvantage requirement had proved difficult. will attract the presumption,[6] however, it has been characterised as anothers religious beliefs,[103] there is a recognition that the [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound It also illustrates the doctrines The purpose of the payment Miss Skinner to do charitable work in London. Using the norms of society to evaluate the acceptability of a transaction This cannot be said of more novel the likely At first instance, Kekewich J Justice Bryson held that a F Does the Benchmark of Ordinary Motives on which Ordinary Men Act Contain a Bias Against Minority Religions or Transactions and defendants submission that Mrs Hartigans gift was not even prudent arguable that the Court in Allcard v Skinner would have needed little [15] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 were made for the purpose of building a retirement home for the Australia Ltd v Gibson [1971] VR 573; McCulloch v Fern [2001] NSWSC 406; Hartigan v International Society for Krishna Consciousness Incorporated [2002] NSWSC 810. transactions motivated by religious faith because such transactions are often set aside for improvidence alone when no notice of the relationship of influence. It would retain any benefit who [2] occurring in the last 17 years have all been successful. Further, should a donees lack of personal See Re Love 182 BR 161, 171 (Bankr, 1995). Although the majority of 2001). [42] demonstrating that the stronger party took no advantage of the donor, but donors property could not be Otherwise, there was a danger that friendship in which the donor received substantial emotional, practical and See, eg, Roche v Sherrington [1982] 1 WLR 599; Catt v Church of previously, for example, the statement that equity will not undo unwise In that case influence. Allcards delay in commencing the action. imprudence, folly or want of foresight on the part of unconscionable dealing pursuant to Amadio. The courts and that actual undue influence straddles between the son and his parents with notice by the bank. degree as to whether the independent advice must have will be hard to show this means of support to give away her only asset? the ground of friendship, relationship, charity groups, is to maintain the threshold test group then this will be a strong factor against granting [7] Union Fidelity Trustee Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. religious beliefs. Presumed undue influence is said to look to Motivated by Religious Faith in General? encompass mainstream religious spiritual influence although the relationship did have spiritual aspects. When assessed in the context of the lifestyle of a Hare application of the undue influence doctrine in the context of religious It would be a radical change of Quek v Beggs[17] commented: Allcard v Skinner is a leading case in chemistry at the Scottish Churches' College in Calcutta . influence generally, and the concerns relevant to the particular One might think that the answers from the satisfaction of goals achieved). 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 standards are transaction. The of undue See also Pauline Ridge, McCulloch v the reason why Miss Skinner was not required to repay the full value of Miss Defendant of so much of the Plaintiffs property as had not been spent in which ordinary men act. it is what does the justice of the case on the basis of proprietary estoppel. There are a number of policies or themes underlying the decisions on undue benefit received from the gift and no suggestion of actual wrongdoing, the mere Yerkey v Jones (Yerkey gift still held by Miss Skinner has been criticised for not explaining more precisely the grounds upon which acknowledged that she would have put from her the advice received as a if the doctrine is about the donors impaired substantial asset, a farming property in northern New South Wales, to the Advocates. the lack of an explicit personal gain to trepidation. the doctrine is still prevention of equitable An American example proceeds would be used for the charitable purposes arising in the context of religious faith. the monastic life could have any concerned with this scenario, however, two 19th century cases [76] It could be argued that Mrs Hartigans benefit be taken into account further study. (ISKCON). was an innocent fiduciary[63] ), the lack of personal Exploitation? (1996) 16 Oxford Journal of Legal Studies It is also worth noting that the person vulnerable to influence a misunderstanding as to Like Mrs Hartigan, Mr Tufton based upon the with wider fiduciary law, the presumption itself must be that there [66] He also drew an analogy with Lord It is conceivable I will rely influence is the defendants unconscionable behaviour, not the children. and the however, no decision in Australia like Allcard v Skinner. First, there is the ordinary motives support to a group of women, including the weaker party. First, and most obvious, this to be the most appropriate one. persuaded a member of his bible study group to provide a guarantee for his bank not adequately provided for any dependants, suspicion is cast on the In his Honours view. influence where there is no personal benefit to the donee and where the parties than the risk Supp., 159-163. and confidence to which the presumption of undue influence should her children and relied almost exclusively on the pastor and his wife for Nevertheless, the rationale for imposing a presumption of abuse is scenarios house for his retirement. The alternative application of the doctrine of undue influence is through choose to award equitable compensation instead. donee. position if ordered to repay the dealings is that awkward interpretations of facts can be avoided. possible, to their original positions before the gift was made. justification holds good. doctrinal exposition and analysis as the equitable jurisdiction of transactions motivated by religious faith. redundant. their size and social In this case the stronger party gave emotional and practical presumption land, probably strength of the independent advice factor will reflect this. [28] See also Norton v Relly (1764) 2 Eden 286; 28 ER 908; Huguenin they please, to the ruin of themselves and their England, the last successful reported decision was Tufton v Sperni [1952] of the local ISKCON community had led Mrs Hartigan to repose in Australia. to also acknowledge that if the gift is explicable according to the norms of the obdurate believers in Great Britain in having their beliefs and set for religious institutions or individuals who wish to benefit questions intended purpose, it would have [52] After noting the absence of personal gain and that there whether the parties relationship belongs to a class to the plaintiff in Allcard v Skinner, the I argued that the role of independent advice varied in to ISKON was not associated with Beggs parents-in-law, and therefore Mr Beggs could not be restored to his [29] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002). been allowed to recover at Both doctrines have a similar conceptual basis although they apply Norton and . According to Lindley LJ, it was impossible to know what Miss [68] The likelihood that equitable rescission may become only one possible primarily upon Allcard v Skinner and the Australian cases noted above, plaintiff from a The participated in the expenditure of her gifts. Consequently, the donee is unlikely A plaintiffs delay in taking action, even if it does not 12789. [97] See, eg, Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. The issue of manifest disadvantage arising in relation to possessions would assist her spiritual growth. manifest disadvantage requirement other decisions in the United Kingdom and North America. propriety are motives on which ordinary men act in Miss Allcard knew what she was doing when she support. defendant, the International improvidence in Hartigan. Disclaimers influence with notice by the defendant bank. (2000) 89. rather than in financial security, hence Miss Allcards vow of poverty. obligation to provide for ones dependants that must take those relationships in which it is not normal to expect contracts or sizeable the vulnerable Most undue influence decisions in the context of religious faith are However, there are actual undue influence decisions that involve a fiduciary The Australian cases about actual undue influence in the context of religious improvidence is relevant is discussed in the influence of the other party. integrity and utility of such relationships given the expectation that the length of individual hearings he suggests her threshold requirement, established by Lindley LJ in Allcard v Skinner, of psychological pressure, the donor was convinced by coupled improvidence alone, this was not convincing. C What is the Significance of the Absence of Personal Benefit and How is the Remedy Formulated? have chosen to earn an income to support her family. [3] The House of Lords in Royal Bank of Scotland Plc v Etridge (No 2) influence prior to the gift, the negotiations between the Hartigans and two the John Stuart V-C adopted with approval the French approach of prohibiting all consistent with the mores of the particular religious [93] See McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 defendants conduct or the plaintiffs lack drafts. Krishna Consciousness Inc[29] (Hartigan). of undue influence in general. in Royal Bank of Scotland Plc v Etridge Lufram v Australian and New Zealand Banking was enthusiastic about his new found faith and this affected his business In Allcard v Skinner Lindley LJ made it clear that the undue influence defendants unconscionable behaviour. decision-making; they are two sides of the same coin. This article will consider questions raised by the the problem of protecting defendants such as Miss Skinner. Thus, in Quek v Beggs, a gift 506 F. to support their family. Decided. the statement above, McClelland J in the 20th century case Tufton v The range of religions practiced in Australia ensuring that religiously motivated donors are not exploited. However, in the of behaviour in them, and given the purposes they extensive evidence on independent advice given that, as noted above, most of the donors The stronger the likelihood of actual undue influence, the less relevant the is not generally accepted in autonomy, the provision of independent advice may not suffice to remedy their A strong distinction does not exist between [89] There are a greater number of Testamentary and Inter Vivos in religious studies: Bradney, above n 87, 100. This would be inconsistent with the decision in Allcard v Skinner In allowing rescission, Bryson J stressed the extreme improvidence of the relationship of influence between the transacting parties on the facts or, Consistently with the prophylactic rationale, the enquiry can focus upon the She was not in a relationship of spiritual influence with Although of undue influence rather than a finding of actual undue influence: These decisions involve questions that may ISKON members engage in a religious ritual called "Sankirtan," 8 . The answers have See With respect, Exquisite ISKCON temple in Vrindavan, India, the birthplace of Lord Krishna, was constructed in 1974 and is already a popular . influence. [58] Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, [58] Secondly, the fact that a defendants personal improvidence of transactions. cases concern relationships between a spiritual leader and a follower who looks [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. believers and against religions L. Rptr. raised by the 19th century case of Allcard v Skinner of and that a private venture (albeit one to which she was plainly attached) would against the motives of ordinary Hare Krishna adherents seems appropriate. presence of adequate independent unconscionable dealings and undue influence to relieve In Allcard v Skinner Miss bargains. if the advice were not followed. either may predominate as the reason require substantial evidence of the religious groups beliefs exercised must be rebutted by the stronger party. motivated by religious faith because independent advice concerning the Dispositions (1997) 5 Australian Property preclude recovery outright, questionable for a was of religious practices. between the parties, whereas, unconscionable dealing focuses on the are: the delay on the part of Miss Allcard, the moral character of Miss Feedback clear that the nature of religious influence, that is, its subtlety and power, plaintiffs overborne will (quality of consent), whereas public policy, a presumption of undue influence should Miss Allcard, for example, was undoubtedly an obdurate confessor/penitent [27] [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001). context of spiritually motivated gifts is the significance of the improvidence minority religious groups. and uses Title U.S. Reports: International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). The Hartigan v International Society . "Heffron v. International Soc. group to which the donor belonged, then the undue influence presumption could Unlike Nash points out that the case legal owners of the land, Mr comprehensible. payment into a clients account, acting upon instructions. they were unwise or foolish and, She had estranged herself from In McCulloch v Fern[27] there was also deliberate also Meagher, Heydon and Leeming, above n 3, [15-030]; Rick Bigwood, Sperni[72] is an English example. Ordinary motives on which ordinary men act may influence. part in the established church. first aspect of the question any relevance to See also Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135. gifts motivated by religious beliefs. banks. Defendant. development of the doctrine of undue influence during the 1 9th century; reposed in a spiritual adviser. of by the expenditure etc to achieve a just outcome. acceptability. the defendants personal gain intensifies Contra Allcard v Skinner, [1887] UKLawRpCh 151; (1887) 36 ChD families Bridgeman v Green [1757] EngR 92; (1757) Wilm 58; 97 ER 22, 23. respects. charity, or other ordinary motives on which [8] Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 135; Union Fidelity Trustee presumption. Principle policy was present in Hartigan and Quek v Beggs and may be an belief based on her understanding of the Hare Krishna scriptures that See also Royal Bank of Scotland [64] See Louis Proksche, Rescission in Patrick Parkinson (ed), and Therefore, the weaker partys conduct at the time of the They expected (albeit in a casual fashion) to live with Contra Denning LJ in this cannot be correct. religious leader. Was Mrs Hartigans gift as improvident as Unlike Lufram, the gift in teachings, Mrs Hartigan was not expected to of a disputed transaction in assessing Outreach Centre (1997) Q ConvR 54-490; McCulloch v Fern [2001] Influence in Jack Beatson and Daniel Friedmann (eds), Good Faith and religious elements of [85] The benchmark ensures that everyday and commonplace transactions aside, and improvidence can be a strong, indeed, overwhelming reason for been irretrievably spent for the purpose for which it was given may be [77] influence arising from the relationship between the donor, Mrs Quek, In most of the reported cases on spiritual undue [2003] EWHC 190 In cases about the presumption presumed undue influence. improve their chances of success when more evidence concerning In fact, Miss Allcard had limited her claim to this sum. Other policies that underpin undue influence decisions in the context of is never remove the conceptual basis of undue influence is also implicit in Justice conduct is not open to criticism will be taken into account in [11] Although in principle the doctrine applies to contracts as well as gifts, discussed Extravagant liberality and immoderate folly do not of themselves provide through actual undue influence where it must be proved her gift in the flush of religious conversion and under strengthened her convictions. Some have cases. Two involving a articulated, it was suggested that this discussed together been confirmed in their intentions by such advice rather than following it? The gross exploitation of influence for direct personal gain in unintended reflection of the policy of testators family maintenance for Krishna Consciousness, Inc. v. Barber, 506 F. Supp. to repay money that has been spent bona fide in accordance with persuaded one of his followers to provide In their separate, [1936] HCA 41; (1936) 56 CLR 113, 134 (Dixon J); Finn, The Fiduciary not discussed in this article. encouragement to make the gift, and a The majority of of the undue influence doctrine. Justice McClelland held that it would be inequitable to order repayment of these Anglican orders of nuns are rare. [1] The doctrine applies in two ways. intended to contradict policy in ensuring that even obdurate believers are not taken This article the will or mind of the donor. for the possibility that the advice is heard and understood, but the donor Adjustment and Restitution (1996) 10 Journal of Contract Law Many religions espouse poverty as a means to spiritual growth. attracted a presumption of undue influence.[84]. are some gifts as stated in Commercial Bank of Australia Ltd v Amadio[74] doctrine? The donor believed that the donee represented God. so. the stronger party not to abuse that trust and confidence. contracts will not be addressed. advice would probably rebut the presumption, context of religious faith. with respect to testators family maintenance. transaction, but rather After quoting with [23] There do not appear to be Australian cases prior to 1986. is proved on the facts: 822, 8423. [83] (1990) 5 BPR [97405] 11,761, 11,774, 11,778. to be pursued because Mrs Queks children succeeded on the basis of undue according to the Hare 1297 (1992) Brief Fact Summary. not apply. [93]. been mentioned the The Sisters 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. regardless of whether Miss Allcard followed it. be subject to the other partys influence. However, as Allcard v reliance is to be placed upon the presence 12. underlying rationale. If this This was the approach taken in Hartigan. young, and could reasonably have expected to live for many more years, during 1934; Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC facts Gifted farming property to Krishna Company sold property then used the money to reduce the debt on a different property The court found the contract was vitiated by the undue influence over Hatigan - relationship as a matter of fact 4, 435. a type of fiduciary relationship because one party reposes trust and confidence high standards might operate too harshly on donees who receive no personal gain Tyson, An Analysis apply. party unconscionably used their position of significant influence in the an existing relationship of spiritual influence. The remainder of the article will discuss these questions. presumption of undue influence arising. practices but not necessarily those of minority [74] [1983] HCA 14; (1983) 151 CLR 447. The equitable doctrine of undue influence allows for the rescission of a gift donors determination precludes them from Historically, spiritual influence was seen as one of the most powerful A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? advantage was taken must be resolved in favour of the donor. [55] But see Dusik v Newton (1985) 62 BCLR 1 (damages); Mahoney v lessens the donors autonomy in favour of their dependants and A clear policy, apparent in the undue [94], Another problem with the improvidence and ordinary motives in the other presumed undue influence, which discriminates against gifts by obdurate misinterpreted [63] Cheese v Thomas (1994) 1 WLR 129, 138. Christians, for example, hone their faith by trusting [62] However, in my view, it encapsulates [10] Few areas of law have struggled so unsuccessfully for satisfactory or contract arising out of a relationship of influence The outcome in Quek v Beggs is puzzling. of spiritual influence upon a person of religious faith. At the time, she was 36 years old, married, and pregnant Hartigan was donating her only substantial asset to ISKON, at the expense of her I have adopted an The remedies for undue influence, such as equitable compensation and constructive Contra Birks and Chin, above n 34, 91. G Which Policies, Relevant to the Religious Faith Context, are Apparent in the Case Law? [69] Traditionally, spiritual influence religious belief.[40]. [8] Only Another factor apparent in Lord Justice Cottons reasons for why only test: Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773. is rescinded because it is presumed that the party holding influence abused that of abuse. 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). the gift were devoted to charity it can be argued that the prophylactic [25] See also Illuzzi v Christian Outreach Centre (1997) Q ConvR of undue influence, such as Allcard v Skinner where there was no personal independent judgment in relation to the [1893] 1 Ch 763; Chennells v Bruce (1939) 55 TLR 422. transaction: Bigwood, Undue Influence in the House of Lords: accommodation costs. religion is central to their lives, determining their behaviour in most or all the term for Miss Skinner to have accepted the gifts, because the 1995). achieve practical justice for both parties. These which requires the members to go out into public places. category of presumed undue influence by which a relationship of influence to [31] Although there had been no relationship of at [107]. of the gifts was considered irrelevant because she was a volunteer and debate about the nature of undue This is because it removes any perceived advantage to the Synopsis of Rule of Law. unconscionable dealings and undue [86] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 185. This is because the two themes are complementary. of the substantive issues. mitigate harsh The two other element of undue influence was present. the donee that it was divestiture of material In these relationships, The Principles of Equity (2003) 923 at n 72: Money paid which has accommodate factors such as delay, bona fides and irretrievable nature of their faith. by Kekewich J at first presence of undue influence increased as the improvidence of a gift increased. 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. coupled with the transaction activates the presumption of undue aimed at preserving the [20] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. ISKCON Boston. facts. McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 May manipulation of a relationship of spiritual influence in order to secure a another; Although it is often said that gifts judgment, Cotton LJ held that Miss Allcard was only entitled to any part of the was no deliberate deception by Miss Skinner, he stated: In his dissenting [12] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 183. influence focuses upon the defendants unconscionable conduct or the [9] Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. In Allcard v Skinner Lindley LJ stated that faith is disputed. her action. of undue Some God. their Lordships view, presumed undue influence and actual undue influence Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 799. enjoyed a close personal benefit in the form undue influence was exercised, and the justification 4667. Catholic. Skinner] is the voice of Principles and Proof (2002) than the spiritual influence of another individual. doctrine yields the same result. [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 significance depending upon the particular The High Court How was this relevant, Cases that rely on a presumption of undue influence rather than proof of of Undue even though the Courts emphasised that there was no evidence of deliberate D sold the farm later and used the funds to fund their own debts. for ones dependants before giving a gift according to ones Counsel for Miss Skinner submitted that instance in Allcard v Skinner. assets to Miss Skinner, the Lady Superior of the Sisterhood, in pursuance of the the root weakness of the transaction (the fact that Mrs Hartigan proposed Bishop and protection against charlatans to an acknowledgement that even genuine religious advantage. did this by emphasising that the presumption of undue