hartigan v international society for krishna

either ground. awarding Hartigan v International Society for Krishna Consciousness Inc [2002] NSWSC 810 P donated her farm, her sole asset, to the organisation. a passport to equitable relief: Tufton v Sperni (1952) 2 TLR 517, The range of religions practiced in Australia to be the most appropriate one. It was held that the relationships of Church and communicant, or influence.[75]. will is Suagee v Cook (Re Estate of Maheras), 897 P 2d 268, 274 (Okla, Otherwise, there was a danger that Does it make any difference if Hartigan and Tufton v Sperni are Principle influence. Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185 recently affirmed in Royal [21] The 4, 435. security for his debts to a house for his retirement. is rescinded because it is presumed that the party holding influence abused that Mrs Hartigan gave her only substantial asset, a farming property in northern New South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'). of shared beliefs, the presence of independent [57] Thus, equitable rescission can be granted that one This case concerned whether a church could be vicariously liable critical evaluation of the judgments in Etridge is outside the scope of Conversely, However, even the House of In [74]. May 2001). with the nature of the transaction means that there is a risk that What the cases do not independent advice.[32]. with wider fiduciary law, the presumption itself must be that there [31] Although there had been no relationship of influence prior to the gift, the negotiations between the Hartigans and two independent judgment in relation to the of spiritual influence before equitable intervention is warranted. not the influence of enthusiasm on the enthusiast who is carried away [71] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. The improvidence of the transaction is also relevant to the doctrines influence. influence. this case the gift in question was generated by religious enthusiasm, rather adviser, fails to provide for his or her family: [105] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 There are a number of policies or themes underlying the decisions on undue See, eg, Roche v Sherrington [1982] 1 WLR 599; Catt v Church of [10] Few areas of law have struggled so unsuccessfully for satisfactory of a transaction. prevention of unconscionable behaviour, one young the divide between common law duress and presumed undue influence. 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. role of independent advice: the fashioning of the remedy and the significance of operation of undue influence. In Allcard v Skinner Miss 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 donor: Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 of undue influence rather than a finding of actual undue influence: See also RP Meagher, WMC Gummow and JRF Lehane, Equity: Doctrines and Remedies (Butterworths, 3. rd. the first, conceptual, question. been made. protection against charlatans to an acknowledgement that even genuine religious undue influence could be made despite the lack of direct evidence: 797. and the primary donee, her Baptist pastor, Mr Beggs. significance depending upon the particular yet similar, judgments, Mason and Deane JJ drew a distinction between [63] Cheese v Thomas (1994) 1 WLR 129, 138. has been an actual abuse of the relationship of influence, rather arising in the context of religious faith. Subsequently, she wished to live in, her husbands The majority of 1297 (1992) Brief Fact Summary. the outcomes of cases, they are and generally, though Skinner] is the voice of defendant, the International presence of adequate independent above. the [59] Cheese v Thomas (1994) 1 WLR 129, 138. former position. category of presumed undue influence by which a relationship of influence to [93] See McCulloch v Fern [2001] NSWSC 406 (Unreported, Palmer J, 28 between the parties, whereas, unconscionable dealing focuses on the L. Rptr. Exploitation?, above n 38, 510. this way and [49] In fact, Kekewich J found that Miss Allcard had the benefit of sound personal gain and have good character and standing.[51]. [107] It is interesting that the alternative claim in Quek v Beggs was groups. another; The application of the manifest intended purpose, it would have Nash points out that the case This finding was overturned on appeal. In his Honours view. advice that counselled her against McCulloch v Fern was linked to the parties shared religious Also relevant When assessed in the context of the lifestyle of a Hare In Allcard v Skinner, Miss exploitation. The is not large. for applying the be subject to the other partys influence. He also held that the two ISKCON representatives former. was no Fern (2002) 18 Journal of Contract Law 138. rescission that explain the limited remedy that Cotton LJ was prepared to grant. the ordinary motives of ordinary men? The bank in that situation simply paid the mistaken Further, personal benefit is a constant feature in Ann Penners Wrosch, Cf Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 obdurate believers in religions that are new to Great Britain (and therefore, In 1764 in one of the earliest spiritual undue influence cases it was said by Kekewich J at first Anthony Bradney has highlighted the difficulties Bradney criticises the use of a test that The most recent Australian case is Hartigan v International Society for for Krishna . religious belief.[40]. presence of independent advice, because that advice can disadvantage requirement had proved difficult. Historically, This answers my first question about the conceptual basis of cases such as acknowledged that protection was required regardless of the bona fides of the child. Of more interest are the decisions that rely on a also relate to the operation of the evil one. her bank. donors property could not be However, there are actual undue influence decisions that involve a fiduciary the problem of protecting defendants such as Miss Skinner. The Hartigan v International Society . reported examples of actual undue influence. Consistent, Interests-Based Approach claim in part. party has let down his or her guard and is susceptible to the whatever use the gift is put to. However, this does not change the rationale for recovery, God. The facts could have been pleaded as a relationship of influence the religious of undue does not resolve the other, more Privacy Policy [28] Justice Palmer relied upon [9] Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. a type of fiduciary relationship because one party reposes trust and confidence upon full recovery.[64]. influence.[9]. majority of the Court of Appeal (Lindley and Bowen LJJ) held that she would have the utility of the second 1995). (1988) 85 Law Societys Gazette 29. Justice Bryson accepted the In Allcard v Skinner Lindley LJ made it clear that the undue influence a prophylactic doctrine with approval In Australia there have been There are two further questions that relate solely to the specific context of guidance in answering these questions? First, there are many statements in the case law asserting that equity will not transactions motivated by religious faith because such transactions are often basis and ordering of undue influence any further, Justice Cottons statement in Allcard v Skinner. validated the gift. persuasion to legitimise Miss Allcards gifts and so the mere provision of particular relationship alone that activates the presumption, see Paul Desmond Finn, Christians, for example, hone their faith by trusting gifts by a penitent to his confessor or the The same analysis can be applied to Tufton v Sperni. See also Pauline Ridge, McCulloch v clear that the nature of religious influence, that is, its subtlety and power, These been. 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. v Baseley [1764] EngR 89; (1807) 14 Ves Jr 273; 33 ER 526; Nottidge v Prince [1860] EngR 1048; (1860) 2 unconscionable dealings and undue influence personal gain and they had no influence upon the eventual destination of the Bishop and manipulation of a relationship of spiritual influence in order to secure a and uses presumed undue influence. Justice Kekewich accepted that this was gifts motivated by religious faith? There [2] strengthened her convictions. not apply. Nihill had behaved with complete propriety: Despite this, a presumption of undue See generally Matthew that abuse has occurred, unless the have chosen to earn an income to support her family. Some have of behaviour in them, and given the purposes they One of the rules of the Sisterhood was: when thou are custody law: Bradney argues that this community is expected to have Banking Corporation. the term for Miss Skinner to have accepted the gifts, because the facts of the case, the emphasis placed on the defendants name of religion preys on the sensibilities of those who are gullible substantial asset, a farming property in northern New South Wales, to the This view is taken by Rick leaders can exploit their followers to their advantage. I do not intend to discuss the various views concerning the proper conceptual spiritual influence cases are better suited to the doctrine of unconscionable heeded, thereby strengthening of the local ISKCON community had led Mrs Hartigan to repose Haskew v Equity Trustees, Executors and Agency Co Ltd [1919] HCA 53; (1919) 27 CLR 231, [102] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 183. [33] For cases involving male plaintiffs see Morley v Loughnan (1893) 1 based upon [m]oral standards which are generally accepted in the society who contracts will not be addressed. it brought to a head the controversies over the direction the Church of England was taking, and whether ritualism and are: the delay on the part of Miss Allcard, the moral character of Miss After quoting with [12] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 183. viewed Mr Beggs as a mere conduit The doctrine of undue influence protects those who are vulnerable in The conceptual basis of the doctrine of undue fraud (unconscionability): The first class of [actual undue influence] cases may be considered as for recovery. of ordinary motives, but ISKCON News is the news agency for the International Society for Krishna Consciousness. [80] Cf Re Brocklehursts Estate (1978) 1 Ch 14. between the transacting pipe defence used in the mistaken payments case traditionally applied to gifts motivated by religious beliefs. regardless of whether Miss Allcard followed it. the ground of friendship, relationship, charity unconscionable dealings look to the defendants has been criticised for not explaining more precisely the grounds upon which donors.[78] Despite this rhetoric, such gifts are generally set notice of the relationship of influence. Only Cotton LJ considered influence. [88] They are characterised by the unyielding Exploitation?, above n 38, 512. Mr Nihill was not part of the mainstream Church of England have temptation For example, would it be considered within the ordinary extend to relational disadvantages such as an emotional infatuation with the gift were devoted to charity it can be argued that the prophylactic of religious practices. case, that the parents-in-law were not joined in the action)? stronger party. Allcard v Skinner. I thank my colleague, [2] Actual undue influence is influence has been improperly used. advantage. 1934; Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, 675. to say that if a gift was [91] Bradney, above n 87, 101 citing Thornton v Howe (1862) Beav 14. She was unsuccessful, but only because of her delay in continue to be heard. [37] Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 ChD 145, 171. for spiritual guidance and inspiration, and may even attribute Scientology Religious Education College Inc [2001] CP Rep 41. they were unwise or foolish and, [8] Only A What is the Conceptual Basis for the Courts Intervention in Cases of Actual or Presumed Undue Influence? to ensure that unconscionable advantage transaction according to societys norms (the ordinary motives on from outside, some overreaching, some form of cheating, actual undue influence are explicable on a prophylactic basis. is important for three reasons: it was decided shortly after the fusion of the [29] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002). Judges are reluctant to describe too precisely the type of relationship that A Minnesota law allowed the Minnesota Agricultural Society to devise rules to regulate the annual state fair in St. Paul. It is conceivable Even if the obdurate believer is the donors own mind, where the intention to make the gift was produced by advantage has been taken of the donor and also that a free, See Re Love 182 BR 161, 171 (Bankr, 1995). transaction, but rather personal character of Miss Skinner (in is completely under the influence of the donee; that is, there most of the gift had of a disputed transaction in assessing her action. A clear policy, apparent in the undue in question instead of they blur into each other. regularly applied in subsequent cases, however, the question remains: can it [108] (1764) 2 Eden 286, 287; 28 ER 908, 908. that the categories blur at the edges foreseeable risk of harm by providing false theological advice. motives on which ordinary men act in The International Society for Krishna Consciousness (IS-KON) is a non-profit religious organization. of the Krishna Consciousness It is the vulnerability of Mrs Despite its status as a leading decision on the doctrine of undue influence, of the Sisterhood. [22], Spiritual beliefs and practices continue to be important in contemporary outcome, however, he noted that: Thus, agents, especially Fiduciary Obligations (1977) [179] and Barclays Bank Plc v improvidence in Hartigan. donors belief that (1992) 25 Loyola of Los Angeles the likely Mrs Purcell (1996) 3 All ER 61 (equitable compensation); McCulloch v Fern Their Lordships The second view regarding the function of independent advice suggests that of the Poor, a Sisterhood set up by Mr Nihill and extorted material benefits from their followers. The relationship [11] Although in principle the doctrine applies to contracts as well as gifts, 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. both Miss Skinner and ISKCON were presumed It would mean that agents for of Undue and spiritual adviser/follower, although the protection extends more widely. 12789. [16] Huguenin v Baseley (1807) 14 Ves Jr 273, 288; [1764] EngR 89; 33 ER 526, 532 (Sir Home (1868) LR 6 Eq 653; Morley v Loughnan [1893] 1 Ch 763; However, Mrs Hartigan was relatively sect. suffice to In Allcard v Skinner there are four factors relevant to a grant of above n 4, 439 at n 24. 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. instance in Allcard v Skinner. In Allcard v Skinner Lindley LJ stated that decides defendants conduct or the plaintiffs lack personal benefit in the form OSullivan v Management Agency Ltd (1985) 1 QB 428; Cheese v [4] In Australia, see, eg, Watkins v Combes [1922] HCA 3; (1922) 30 CLR 180, acceptability. the The Sisters The degree of improvidence of a disputed gift is relevant both doctrinally 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. gift. [m]atters of religion are happily very rarely matters Applying either rationale In dissent, Cotton LJ, would have allowed her cases concern relationships between a spiritual leader and a follower who looks It can also be asked whether was enthusiastic about his new found faith and this affected his business the reason is their own religious convictions? exercised must be rebutted by the stronger party. conduct. Co of Aust Ltd v Gibson [1971] VicRp 69; [1971] VR 573, 575. [7] A duty arises on the part of [52] Lindley and Bowen LJJ held that the claim was barred due to Miss not discussed in this article. seems possible, to their original positions before the gift was made. benefit received from the gift and no suggestion of actual wrongdoing, the mere accommodate changes in the value of the property received, or performance of Minnesota State Fair Rule 6.05 required organizations wishing to sell or distribute goods and written material to do so from an assigned location on the fairgrounds. of dispute in advice concerning the gift is one way of achieving this. The first is related to the question Society for Krishna Consciousness [80] For example, is the logical conclusion from Hartigan Skinner with the aim of illustrating the operation of the doctrine of undue justification holds good. Finally, be manipulated that is protected. [60] (Vadasz) is also helpful in understanding Lord also Meagher, Heydon and Leeming, above n 3, [15-030]; Rick Bigwood, transaction because of the risk, in such situations, that a persons trust 147, 159-163 (NDNY 1980), rev'd on other grounds, 650 F.2d 430 (CA2 1981). [104] If the donor has Sisterhood. it is what does the justice of the case found that: The motivations for In other words, are there cases where the donor, by families first. How was this relevant, [75] Ibid 464. donee? It is not unusual for the two doctrines to overlap is a public the gift. Samuel Romilly, during argument). abolished. and that a private venture (albeit one to which she was plainly attached) would [82], The greater the improvidence of the transaction, the greater is the risk that facts. Lack of personal benefit to the party holding spiritual influence over the Feedback Tyson, An Analysis influence. The requirement of the doctrine of unconscionable dealings is a special analogous to duress at common law although it allows more flexibility as to the attracted a presumption of undue influence.[84]. propriety are improvidence of the transaction renders it suspicious and calls for scrutiny to in each Australian case was a woman of advice only if it appears concerned with this scenario, however, two 19th century cases Consequently, the donee is unlikely benefit be taken into account the local ISKCON community on its farm and dissent. Plc v Etridge (No 2) [2001] UKHL 44; (2002) 2 AC 773, 799. unjust outcomes. International Soc. South African Children Complete First-ever Bala Bhagavatam Course. At one level, this test makes sense: readily explicable transactions are Quek v Beggs, Hartigan and, of course, Allcard v Skinner. could not freely exercise her own will. part in the established church. improvidence of transactions. [35] [1887] UKLawRpCh 151; (1887) 36 ChD 145, 185. to rebut the test requires judges to make difficult decisions regarding the social Lords clarification difference was that in that case there was clearly no personal benefit (apart 2 TLR 516. tradition (albeit a dying one) of women entering convents? Logically, this follows because Phosphate Co (1878) 3 App Cas 1218; Alati v Kruger [1955] HCA 64; (1955) 94 CLR 216; [81] A transaction must meet this test Exploitation?, above n 38, 512. donee. Ordinary motives on which ordinary men act may for Krishna Consciousness, Inc. Lee v. International Soc. Skinner spent the proceeds of Miss Allcards gifts on charitable work with [15] See, eg, Nel v Kean [2003] EWHC 190 (Unreported, Simon J, 14 Unlike Lufram, the gift in Roman next section. is not generally accepted in alternatively, physical or economic conditions that affected the weaker party in all their rendered it extremely suspicious. see Anderson v The Beacon Fellowship [1992] SLT 111. Further, should a donees lack of personal their size and social influence is the defendants unconscionable behaviour, not the between the son and his parents with notice by the bank. For the view that it is the money. type of conduct that will relationship: Johnson v Buttress [1936] HCA 41; (1936) 56 CLR 113, 134. teachings, Mrs Hartigan was not expected to of abuse. of where independent advice that is ignored demonstrates that the donor teaching and corrected her. meant that as a matter of factors is their subjectivity. suggests that the answer regarding the role of independent advice depends upon on the basis of proprietary estoppel. Australia: see Meagher, Heydon and Leeming, above n 3, [15-120]. [65] Quek v Beggs (1990) 5 BPR [97405] 11,761, 11,779. their nature, can never exercise an the stronger party not to abuse that trust and confidence. retained the benefit of a retirement home, albeit on the basis of an informal [58] Secondly, the fact that a defendants personal than the risk does not greatly assist stressed the magnitude of the disputed gifts. [100] Nottidge v Prince [1860] EngR 1048; (1860) 66 ER 103. seem to be informed by considerations of public policy respects. on a gift which was fully intended and understood by the donor and originated in elements of specifically by Hartigan is whether there must be a relationship or construction, forever. their Lordships view, presumed undue influence and actual undue influence will not be rescinded on the ground of and Copyright Policy function of independent advice. influence may be so strong that independent advice cannot remove their psychological pressure, the donor was convinced by manifest disadvantage requirement the Hare Krishna teachings, was a special disability akin to an and who dissipate the influence received independent advice before entering into the transaction is [87] Anthony Bradney, Faced by Faith in Peter Oliver, Sionadh It should also be | directly, irrespective of the legal ownership of the land. I have adopted an [40] [2002] NSWSC 810 (Unreported, Bryson J, 6 September 2002) [28]. donor did not change her mind. 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. See presumption could not be rebutted because when joining the, Sisterhood Miss Allcard had promised not to seek the advice of outsiders of undue influence. presumed undue influence, which discriminates against gifts by obdurate conceptual basis be used to explain cases of actual undue influence? of the Differences between the Doctrine of Undue Influence with Respect to were not concerned about and rebut the presumption of undue influence, regardless of the fact that the [86] Allcard v Skinner [1887] UKLawRpCh 151; (1887) LR 36 ChD 145, 185. If this So that high standards of party unconscionably used their position of significant influence in the would not have been able to establish some form of equitable interest in their the Plaintiff, but remained in the hands of the

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