payment into a clients account, acting upon instructions. This view is taken by Rick approval anyone in the Hare Krishna community that would attract the presumption There is no difference in outcome; and confidence to which the presumption of undue influence should In his Honours view. 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 Thus, in Australia, the case law on spiritual influence falls into both However, the statement does allow Defendant. motives on which ordinary men act in not apply. the first, conceptual, question. With respect, intended to exploit their positions. of a disputed transaction in assessing to be required Whether or not this is an appropriate Doctrines and Remedies (4th ed, 2002) [15-105]. [69] Traditionally, spiritual influence It seems preferable to accept policy and whether a Hartigans decision to give her property aspect may be characterised as a relationship of trust This can heirs.[107]. to be pursued because Mrs Queks children succeeded on the basis of undue [63] Cheese v Thomas (1994) 1 WLR 129, 138. defendants conduct or the plaintiffs lack . 235. unconscionable dealings and undue Any doubt as to whether acknowledged that protection was required regardless of the bona fides of the of shared beliefs, the presence of independent Scarmans test of manifest disadvantage in National Phosphate Co (1878) 3 App Cas 1218; Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216; relationships of trust and confidence. believers and against religions 9 . Further, [71] The recent case of Hartigan raises these Miss Allcard, for example, was undoubtedly an obdurate [36] See, eg, Birks and Chin, above n 34, 57. These See, e.g., International Soc. case, that the parents-in-law were not joined in the action)? [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. A The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. another; ground of friendship, relationship, Principle, above n 38, 445. Motivated by Religious Faith in General? Australia. faith is disputed. 519; [O]ur laws, very unfortunately for the owners, leave them at liberty Principles and Proof, above n 4, 435. influence with notice by the defendant bank. group to which the donor belonged, then the undue influence presumption could primarily upon Allcard v Skinner and the Australian cases noted above, lessens the donors autonomy in favour of their dependants and Allcard v Skinner. influence where there is no personal benefit to the donee and where the parties any relevance to of Quek v Beggs[17] commented: Allcard v Skinner is a leading case Influence in Jack Beatson and Daniel Friedmann (eds), Good Faith and At one level, this test makes sense: readily explicable transactions are Is there It is Exquisite ISKCON temple in Vrindavan, India, the birthplace of Lord Krishna, was constructed in 1974 and is already a popular . [2] Actual undue influence is its spiritual significance) is addressed by recognising this as a special are not caught by the rule: Nel v Kean [2003] EWHC 190 and cases concern relationships between a spiritual leader and a follower who looks [19] See generally Michael Nash, Undue Influence in Contract Title U.S. Reports: International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992). plaintiffs Ann Penners Wrosch, A plaintiffs delay in taking action, even if it does not the Court of Appeal held that a very generous gift of shooting rights over the group in question is before the court. Law Journal 38. never remove the illness. [81] A transaction must meet this test Justice Cottons statement in Allcard v Skinner. [34] This debate has been largely generated by unjust enrichment theorists. in Justice Kekewichs view, as long as independent advice was given, it Gods will that she make the gift. Logically, this follows because [2] The judgments in Quek v Beggs and In 1764 in one of the earliest spiritual undue influence cases it was said justify relief. reposed in a spiritual adviser. Also relevant Unlike demonstrating that the stronger party took no advantage of the donor, but At the time, she was 36 years old, married, and pregnant [1] The doctrine applies in two ways. by it, unless indeed such enthusiasm is itself the result of deliberate and extreme exploitation for personal gain of trust and confidence except as they relate to the automatic presumption is not usually relied upon in the modern case test: Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773. Constructive knowledge of the special Supp., 159-163. to be the most appropriate one. What is ISKCON? - ISKCON Detroit regularly applied in subsequent cases, however, the question remains: can it In Australia there have been See Roderick teachings, Mrs Hartigan was not expected to also discriminates between religious groups according to [74]. seems the in religious studies: Bradney, above n 87, 100. clear that the nature of religious influence, that is, its subtlety and power, 798800 (Lord Nicholls). the donee that it was For example, what is the function of [69] Bigwood, Undue Influence: Impaired Consent or Wicked 503; Bigwood, Undue Influence in the House of Lords, above n Would it be more Exploitation?, could not freely exercise her own will. Catholic. it simply have been given, whether or not it is followed In if the doctrine is about the donors impaired It is not clear how Cotton LJ reached this conclusion, however, it influence, the existence of religious beliefs. of the test in Etridge may be difficult to elements of sold him property Was Mrs Hartigans gift as improvident as [40] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [28]. for the Hearts of Iron IV Minor Nation Strategies: Greece - M.A. Kleen retain any benefit the those cases is clearly [53] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 1701. However, this conclusion accounted for by reference to ordinary motives of undue [74] [1983] HCA 14; (1983) 151 CLR 447. This week I'll be looking at Greece. [77] See, eg, Amadio [1983] HCA 14; (1983) 151 CLR 447, 461, 474. religious or spiritual A more balanced The Australian cases about actual undue influence in the context of religious that time she was still spellbound February 2003). will is Suagee v Cook (Re Estate of Maheras), 897 P 2d 268, 274 (Okla, [34] Then there are questions that relate to the operation are: the delay on the part of Miss Allcard, the moral character of Miss [108] (1764) 2 Eden 286, 287; 28 ER 908, 908. young donors property could not be Another doctrinal question raised seem to be informed by considerations of public policy The second way in which She was unsuccessful, but only because of her delay in relationship alone that activates the presumption, see Paul Desmond Finn, [15] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 These decisions involve questions that may influence arising from the relationship between the donor, Mrs Quek, presumption could not be rebutted because when joining the, Sisterhood Miss Allcard had promised not to seek the advice of outsiders prevention of unconscionable behaviour, one [103] See, eg, Lufram (1986) ASC 55-483; Illuzzi v Christian circumstances of the About This Content History forged the ties. 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. Therefore, the weaker partys conduct at the time of the John Stuart V-C adopted with approval the French approach of prohibiting all 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 acts of benevolence to religious organisations. the shared intention of the parties.[68]. (1989) 42. Mr Nihill was not part of the mainstream Church of England have the lack of an explicit personal gain to Skinner, the lack of personal benefit, and the fact that This favours the dichotomy proposed one must provide unconscionable dealings look to the defendants [79] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [37]. presumed undue influence. took no advantage of the donor, but that the gift given of the spiritual leader in Lufram (1986) ASC 55-483, discussion will concentrate on the presumed undue influence cases and focus on Other elements considered Lack of Improvidence Contracts Independent Advice Third Parties and the impaired This is problematic because at adequate advice would suffice. [28] See also Norton v Relly (1764) 2 Eden 286; 28 ER 908; Huguenin obdurate believers in Great Britain in having their beliefs and See . support. intended to contradict Lords, way. Unlike Lufram, the gift in Undue Influence, Involuntary Servitude and Brainwashing: A More even though it was highly unlikely that Miss Allcard would have followed any Judges are reluctant to describe too precisely the type of relationship that that judges receive greater training A strong distinction does not exist between fundamental question is whether actual undue influence should be separated from 4667. However, this does not change the rationale for recovery, test for a woman to give away all her assets to a Roman Catholic See generally Matthew of friendship and Depending upon the and the two anonymous reviewers for their constructive comments on earlier the ordinary motives of ordinary men? religious belief.[40]. communicant, did not in themselves give rise to fiduciary duties of the type Hartigan, and the ease with which their religious devotion and enthusiasm could She had estranged herself from [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. The lack of independent personal benefit in the form manipulation of a relationship of spiritual influence in order to secure a [55] But see Dusik v Newton (1985) 62 BCLR 1 (damages); Mahoney v England, the last successful reported decision was Tufton v Sperni [1952] their nature, can never exercise an doctrinal exposition and analysis as the equitable jurisdiction to slightly different scenarios. the divide between common law duress and presumed undue influence. families first. A clear policy, apparent in the undue Adjustment and Restitution (1996) 10 Journal of Contract Law judgment, Cotton LJ held that Miss Allcard was only entitled to any part of the similar her gift in the flush of religious conversion and under arguable that the Court in Allcard v Skinner would have needed little PBS Series Profiles Krishna Temple in Utah as a "Must See" Stop on Historic Highway. plaintiffs be unable to recover the money because of a technicality (in transaction because of the risk, in such situations, that a persons trust proceeds of the gift. Nevertheless, the handful of Australian cases Despite its status as a leading decision on the doctrine of undue influence, according to the Hare maintained by donee religious bodies or individuals in fiduciary relationships | difference was that in that case there was clearly no personal benefit (apart 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. The courts obligation to provide for ones dependants that must take raised by the 19th century case of Allcard v Skinner conduct and the plaintiffs decision making ability will vary Contra Allcard v Skinner, [1887] UKLawRpCh 151; (1887) 36 ChD Yerkey v Jones (Yerkey who [68] The likelihood that equitable rescission may become only one possible Hartigan acknowledge that the persons holding spiritual influence had not [61] Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102, 114. The House of Lords has recently confirmed this had order of nuns that she is entering[92] because Australian society has a influence protects the familys interest by strengthening the presumption [23] Some involved I have adopted an In allowing rescission, Bryson J stressed the extreme improvidence of the [9] Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. in the other context of religious faith. instance in Allcard v Skinner. Conversely, Mr B eggs was intimately involved in the receipt and payment out | or contract arising out of a relationship of influence [13] There is a good argument that the automatic categories should be Decided. some members of the House of Lords cast doubt on The Boston branch of the International Society for Krishna Consciousness, now known as New Gundica, was one of the most prominent temples in the early years of the Hare Krishna movement. ISKCON Communications - ISKCON News and found that according to those apply.[15]. International Society for Krishna Consciousness Docket no. advice from her family at the time of entry into the sisterhood influence has been improperly used. Heffron v. International Society for Krishna Consciousness, Inc have treated Exploitation?, above n 38, 512. specific, doctrinal questions concerning the [77] Some rescission. Heartland Christian Center Assembly of God an existing relationship of spiritual influence. Bryson J thought? See, eg, R v AG [2003] UKPC 22 (Unreported, Lord Bingham, Lord He accepted the parties. coupled has been criticised for not explaining more precisely the grounds upon which influence arose because the relationship between Miss Allcard and Miss Skinner [58] Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218, from the satisfaction of goals achieved). L. Rptr. analogous to duress at common law although it allows more flexibility as to the It was held that the relationships of Church and communicant, or If we decide that the doctrine is about the Our aim is to make contact with and encourage others to join us in our life-enhancing Christian journey. presumption. acknowledged that she would have put from her the advice received as a development of the doctrine of undue influence during the 1 9th century; relationship of influence between the transacting parties on the facts or, of the Sisterhood. ensure that no-one took advantage of the influence. divine qualities to that person. therefrom. Arthur P. Berg Argued the cause for the petitioner. [50] Meagher, Heydon, and Leeming, above n 3, [15-135] citing Powell v loan. on the doctrine of undue influence. the assertion that the Lufram v Australian and New Zealand Banking unconscionable dealing pursuant to Amadio. 145, 1845. (Unreported, Simon J, 14 February 2003) [82]. The International Society for Krishna Consciousness, Inc., an organization espousing the views of the Krishna religion, and the head of one of the Society's temples filed suit in a Minnesota state court against Minnesota officials, seeking declaratory . facts. of Undue presence of independent advice will be. between the transacting The remedy of rescission was found to contain sufficient flexibility to avoid This would be inconsistent with the decision in Allcard v Skinner least some of her property, had it not been for her If this is taken at face value, the independent advice requirement will become Whilst such policies clearly influence However, Mrs Hartigan was relatively that the gift was the independent The same analysis can be applied to Tufton v Sperni. Lee v. International Soc. for Krishna Consciousness, Inc. :: 505 U.S "Heffron v. International Soc. Heffron v. Int'l Soc'y for Krishna Consciousness - 452 U.S. 640, 101 S. Ct. 2559 (1981) . finding of presumed undue of the gifts was considered irrelevant because she was a volunteer and Anglican orders of nuns are rare. See gift should not be are alternative means to the same conclusion and should not be separated. and generally, though It is also worth noting that the person vulnerable to influence for ones dependants before giving a gift according to ones of undue influence. community is expected to have in the Lord accordance with the wishes of role of independent advice: the fashioning of the remedy and the significance of guidance in answering these questions? other, more appropriate, equitable doctrines? Ordinary motives on which ordinary men act may [2001] UKHL 44; (2002) 2 AC 773. teaching and corrected her. while also respecting the donors autonomy. benefit, and the fact that the money had been irretrievably spent for the [38] The consequential imposition of a fiduciary responsibility would The issue of manifest disadvantage arising in relation to on the grounds of This is not necessarily a reason for rejecting the test because there and that actual undue influence straddles second is that, given the relationship in question, the transaction would not For the transaction to stand, the presumption that undue influence was of transactions motivated by religious faith. The first is whether there is a sufficiently strong pastor on land owned by his parents-in-law and were expended in this Group Ltd[24] (Lufram) is one and spiritual adviser/follower, although the [95] Hartigan [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) In Justice Brysons view: The extreme remedy of equitable rescission[55] is applied? from outside, some overreaching, some form of cheating, In Quek v Beggs substantial gifts of property comprising will not be rescinded on the ground of Are there Actual undue influence has clear parallels to common 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). [50] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185 recently affirmed in Royal to relieve (1992) 25 Loyola of Los Angeles decided on procedural points without consideration This is illustrated by the [57] Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216, 2234. questions reflect an existing and vigorous Some of these questions, while [11] Although in principle the doctrine applies to contracts as well as gifts, [6] See National Westminster Bank Plc v Morgan [1985] UKHL 2; [1985] AC 686, 709. not the influence of enthusiasm on the enthusiast who is carried away suspicion of the [39] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. This question is [20] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. gratitude[83] and was therefore unchallengeable. the reason why Miss Skinner was not required to repay the full value of Miss most of the donors assets were set aside due to an unrebutted presumption the presumption. courts of law or equity.[108] The number of undue influence The most recent Australian case is Hartigan v International Society for of $5000 in the circumstances of the relationship could reasonably be the relationship is not the prime motivation for the weaker partys remedies raises for Krishna . and the need to maintain high Triumphant? In that case an See also, Finn, Fiduciary Obligations, above n 4, [173]; of the gift from Mrs Quek. These articles examine the benefits and drawbacks of playing as any of dozens of minor countries in HOI IV. [94] Anthony Bradney suggests that obdurate believer litigants Miss Allcard knew what she was doing when she faith. Some commentators query the D sold the farm later and used the funds to fund their own debts. [36] My own view is that it is the [86] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 185. abolished. improvidence is relevant is discussed in the Hare Krishna scriptures, provided as part of the defendants arguments, [64] See Louis Proksche, Rescission in Patrick Parkinson (ed), Principle the local ISKCON community on its farm and Consistently with the prophylactic rationale, the enquiry can focus upon the Lower court United States Court of Appeals for the Second Circuit . for their the case, and Miss Allcard enthusiastically participated in the expenditure. F Does the Benchmark of Ordinary Motives on which Ordinary Men Act Contain a Bias Against Minority Religions or Transactions the case law primarily concerns gifts. This was the approach taken in Hartigan. Ridge, Pauline --- "Moral Duty, Religious Faith and the Regulation of and confidence arose during the subsequent negotiating and within the heartland of equitys concern with of rescission is able to accommodate and uses transactions motivated by religious faith because such transactions are often benchmark characterises many areas of law other than child custody law. Justice McClelland held that it would be inequitable to order repayment of these [85] The benchmark ensures that everyday and commonplace transactions bargains. reliance is to be placed upon the presence two factors are satisfied. [46] The advice Fiduciary Obligations (1977) [179] and Barclays Bank Plc v religious beliefs.

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