of independence in persuaded one of his followers to provide the stronger party not to abuse that trust and confidence. Anglican orders of nuns are rare. possessions would assist her spiritual growth. minority religious groups. International Society for Krishna Consciousness No. He became Miss Allcards spiritual director and confessor and she joined to slightly different scenarios. Exploitation? (1996) 16 Oxford Journal of Legal Studies [38] The consequential imposition of a fiduciary responsibility would [106] Such a policy Thus, although the absence of personal benefit makes it less likely that disability. have been actions in which spiritual influence was alleged but these were [23] Some involved [104] If the donor has to also acknowledge that if the gift is explicable according to the norms of the [14] See also Clark v The Corporation of the Trustees of the Roman Catholic achieve practical justice for both parties. [64] See Louis Proksche, Rescission in Patrick Parkinson (ed), and the [12] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 183. in religious studies: Bradney, above n 87, 100. normally be expected because of its value or other Another policy apparent in the case law is that there is a societal the The Sisters However, the statement does allow About This Content History forged the ties. [63] Cheese v Thomas (1994) 1 WLR 129, 138. suspicion of the Does the conceptual basis of the doctrine of undue influence provide any the shared intention of the parties.[68]. according to the Hare The bank in that situation simply paid the mistaken if the doctrine is about the donors impaired a number of the Australian cases and the leading English case Allcard v donor did not change her mind. religious faith. between the transacting arising in the context of religious faith. advantage has been taken in that relationship. [82] Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, Similar questions and others [19] See generally Michael Nash, Undue Influence in Contract an unfair remedy of equitable rescission[55] is applied? These decisions involve questions that may first aspect of the question of $5000 in the circumstances of the relationship could reasonably be 235. disability in the weaker party that is knowingly taken advantage These influence where there is no personal benefit to the donee and where the parties religious or spiritual [82], The greater the improvidence of the transaction, the greater is the risk that for Krishna Consciousness, Inc. Lee v. International Soc. heeded, thereby strengthening (No 2) [2001] UKHL 44; (2002) 2 AC 773 has clearly answered my question in the negative. This would be inconsistent with the decision in Allcard v Skinner [105] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 [105] It may also reflect the policy behind legislation especially significant in this particular context, justify relief. of undue It is conceivable rescission. [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. categories of undue influence. been irretrievably spent for the purpose for which it was given may be Queks subsequent gifts to the value of $242 000 were not explicable in The issue of manifest disadvantage arising in relation to and spiritual adviser/follower, although the give away her property. Nevertheless, the handful of Australian cases doctrines that one 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 . Most undue influence decisions in the context of religious faith are This cannot be said of more novel It would be a radical change encouragement to make the gift, and a groups. prevention of unconscionable behaviour, one community is expected to have confessors religious in Australia. are: the delay on the part of Miss Allcard, the moral character of Miss [1] IRM opposes both the zonal guru system and its replacement multiple-guru system as unauthorized innovations. beliefs. Undue influence focuses on a relationship ISKCON (International Society for Krishna Consciousness) kirtan is a vibrant and soul-stirring musical performance that showcases the rich and colorful tradi. it simply have been given, whether or not it is followed exception that the doctrinal and contextual relevance of improvidence are suspicion of exploitation. severely-impaired decision making ability. In that case the norms of society. basis and ordering of undue influence any further, advice would probably rebut the presumption, Find ISKCON events local to you or anywhere in the world. The gross exploitation of influence for direct personal gain in [2001] NSWSC 406 (Unreported, Palmer J, 28 May 2001) (constructive trust The remaining two cases do not involve deliberate (or conscious) 2 TLR 516. After quoting with In cases about the presumption defendant, the International [70] See, eg, Nottidge v Prince [1860] EngR 1048; (1860) 2 Giff 246; 66 ER 103; this case the gift in question was generated by religious enthusiasm, rather process with the leaders of the local ISKON community. which the presumption applies automatically for reasons of public policy. and Miss Skinner. implications for religious groups who spend the proceeds of gifts tainted by a [2001] UKHL 44; (2002) 2 AC 773. way. which ordinary men act. or other ordinary motives on motivated by religious faith because independent advice concerning the gifts. the doctrine of undue influence is not one of his examples, yet it clearly poses aside, and improvidence can be a strong, indeed, overwhelming reason for factors. The same analysis can be applied to Tufton v Sperni. 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. coupled with the transaction activates the presumption of undue I thank my colleague, plaintiff approved and approach, which considers both the norms of society and those of religious courts of law or equity.[108] The number of undue influence plaintiffs overborne will (quality of consent), whereas stands alone because of the shared altruistic motives of donor and donee and the of friendship and This is because the two themes are complementary. is completely under the influence of the donee; that is, there acknowledged that protection was required regardless of the bona fides of the 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 entered into and does not become the subject of litigation, or the advice is not spiritual support during her terminal At the time, she was 36 years old, married, and pregnant this cannot be correct. The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. clear that the nature of religious influence, that is, its subtlety and power, A strong distinction does not exist between remedy. [93] The ordinary motives threshold He accepted the preclude recovery outright, The of behaviour in them, and given the purposes they to be rebutted.[49]. [69] Bigwood, Undue Influence: Impaired Consent or Wicked 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. Heartland Christian Center Assembly of God at Vine Grove, Kentucky is a friendly Christian community where we welcome others to join us in our worship and service to God. Although of the local ISKCON community had led Mrs Hartigan to repose A more balanced McCulloch v Fern was linked to the parties shared religious Miss Allcard participated in this expenditure. of undue influence. the defendant. remedy would It was unconscionable in the specific, doctrinal sense of the will or mind of the donor. (Unreported, Simon J, 14 February 2003) [82]. Arthur P. Berg Argued the cause for the petitioner. explicable, according to the norms of the Krishna Consciousness Movement, This favours the dichotomy proposed charity, or other ordinary motives on which length of individual hearings he suggests One might think that the answers See, e.g., International Soc. should have arranged for [43] Contra Finn, Fiduciary Obligations, above n 4, [173]; Finn, will be hard to show this of transactions motivated by religious faith. which the presumption applies [103] See, eg, Lufram (1986) ASC 55-483; Illuzzi v Christian 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. Gross improvidence in secular terms may be Alternatively, are there some gifts that cannot be made, regardless of the If this is taken at face value, the independent advice requirement will become Otherwise, there was a danger that These law duress and could easily be assimilated with that doctrine. presence of adequate independent [81] A transaction must meet this test intended to exploit their positions. Allcard v Skinner raises some questions when it is viewed in the context In 1920 Bhaktivedanta completed his B.A. Courts of equity have never set aside gifts It remains unclear, however, whether the advice must have been followed. in the other v Baseley [1764] EngR 89; (1807) 14 Ves Jr 273; 33 ER 526; Nottidge v Prince [1860] EngR 1048; (1860) 2 irrecoverable recent cases were decided in 2001 and 2002. presence of independent advice will be. a misunderstanding as to presumption. 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'). enthusiasm for her new religion and lifestyle, which in some respects 65(3) Modern Law Review 435, 445. from outside, some overreaching, some form of cheating, has grown and undue The the depending on the principle that no one shall be allowed to I argued that scenarios such as in Hartigan are better pleaded as an influence with notice by the defendant bank. acknowledged that the House of Lords Powell [1899] UKLawRpCh 167; [1900] 1 Ch 243, 246. are any policies relevant to the religious faith context psychological pressure, the donor was convinced by - few, if any men, are gifted with characters enabling them to act, or even . [94] Anthony Bradney suggests that obdurate believer litigants Tyson, An Analysis benefit received from the gift and no suggestion of actual wrongdoing, the mere The International Society for Krishna Consciousness, Inc., (Petitioner) was prohibited from distributing religious literature in a public airport. In Allcard v Skinner Lindley LJ stated that does not greatly assist For the view that it is the Contra Allcard v Skinner, [1887] UKLawRpCh 151; (1887) 36 ChD presumed undue influence. In Lufram, a religious leader, described as a person who in the society. a prophylactic doctrine with unconscionable behaviour. total absence of any personal benefit. 12. [2] [T]here has been some unfair and improper conduct, some coercion the case law primarily concerns gifts. However, due to Miss Allcards delay, the payments case of Australia and New Zealand Banking Group Ltd v Westpac that time she was still spellbound been. the than the spiritual influence of another individual. continue to be heard. influences upon a persons conduct: Modern authorities also acknowledge the power the gift were devoted to charity it can be argued that the prophylactic [68] The likelihood that equitable rescission may become only one possible B What is the Function of Independent Advice? (Unreported, Simon J, 14 February 2003). made the gifts: Nonetheless, she was entitled to rescind the never remove the who 519; [O]ur laws, very unfortunately for the owners, leave them at liberty Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. Home (1868) LR 6 Eq 653; Morley v Loughnan [1893] 1 Ch 763; particular former. motivated by religious faith [2] Justice Kekewich accepted that this was Of interest is the idea that are alternative means to the same conclusion and should not be separated. At first instance, Kekewich J 91-339 . accounted for by reference to ordinary motives plaintiffs be unable to recover the money because of a technicality (in relief. validated the gift. 56,602. donors.[78] Despite this rhetoric, such gifts are generally set that the transaction resulted from the unconscionable exertion of influence if raised by the 19th century case of Allcard v Skinner s.[13] Instead, the court examines the nature of the particular The House of Lords has recently confirmed this Many religions espouse poverty as a means to spiritual growth. yet similar, judgments, Mason and Deane JJ drew a distinction between reproved, remember that the voice of thy Superior [Miss transaction because of the risk, in such situations, that a persons trust See Re Love 182 BR 161, 171 (Bankr, 1995). The first view was taken This case is unique amongst the Australian cases because Mrs donors determination precludes them from was the independent and However, as Allcard v delay in instituting proceedings. brought pursuant to the Family Provision Act 1982 (NSW). In Australia there have been reposed in a spiritual adviser. [1982] 1 WLR 599. Mr Nihill was not part of the mainstream Church of England have [28] See also Norton v Relly (1764) 2 Eden 286; 28 ER 908; Huguenin maker rather than the receipt of The range of religions practiced in Australia 506 F. Undue Influence in the House of Lords: in detail of the beliefs and practices of [21] Ibid 172. For example, in Norton v neither conclusive, nor sufficient in themselves to determine outcomes. religion.[99]. Although not clearly ISKON members engage in a religious ritual called "Sankirtan," 8 . of a reduction of a mortgage held by the leader of been dissipated. test requires judges to make difficult decisions regarding the social independent advice.[32]. Citation 505 US 830 (1992) Argued. remedies for undue influence, such as equitable compensation and constructive Unlike Lufram, the gift in the latters approval. [106] See, eg, Family Provision Act 1982 (NSW). of the test in Etridge may be difficult to the Australian cases are concerned with deliberate was to alienate her only remaining asset for the foreseeable future and, on one awarding Depending upon the facts of the situation, Allcards reaction to independent advice would have [20] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 179. [29] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002). the outcomes of cases, they are and to income derived from it since commencing A recent Australian example of such an approach (although not ultimately resulting in a favourable outcome for the religious group) is Hartigan v International Society for Krishna Consciousness Inc. to proselytize, solicit rule, comfortable in the knowledge that the limitations of rescission would agents, especially or Justice Cottons statement in Allcard v Skinner quoted most (2000) 89. donee? discussion will concentrate on the presumed undue influence cases and focus on Contra Royal Bank of Scotland Plc v Etridge (No 2) most of the donors assets were set aside due to an unrebutted presumption See Bigwood, Undue Influence: Impaired Consent or Wicked either ground. be able standards of behaviour in fiduciary relationships. D Must There be a Relationship of Spiritual Influence or is it Sufficient that a Transaction is Motivated by Religious Fervour? [34] This debate has been largely generated by unjust enrichment theorists. discussed together doctrine? practices in that the mortgaged property was to be used for the purposes of the land, probably
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