Indirect consideration of the donor’s religious faith through the application of objective standards

The legal regulation of gift giving is premised upon objective standards of behaviour that encapsulate societal norms. In the second part of this chapter I will suggest that the law negotiates the sacred in an indirect and possibly discriminatory way through the application of objective standards. Donors motivated by strong religious faith are likely to fall outside societal norms embedded in the relevant legal doctrines and are disadvantaged by an unthinking application of such norms in the law. This happens in two ways. First, donors of strong religious faith are less likely to meet objective standards based upon societal norms. Secondly, the content of such standards, whilst appearing neutral, may reflect the dominant religious values of the time at which the standard was set or may be given content by a judge’s own religious acculturation. These points are now discussed more fully.

Objective standards in legal doctrines and their application to donors of strong religious faith

Objective standards are not unusual in the law. The standard of the ‘reasonable person’ in the law of negligence is probably the most well known: whether a person is negligent is determined by comparing that person’s conduct with how a reasonable person would have behaved in the same circumstances. Similarly, in legal doctrines regulating gift giving, the conduct of the donor of a gift is often measured against an objective standard of conduct. We have seen one objective standard already: the second requirement of equitable undue influence is that the gift is ‘so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act’.[27] Provided that a relationship of influence is found, the gift is measured against a societal norm of the ‘ordinary motives of ordinary men’. Similarly, the case law that has interpreted family provision legislation requires that the donor of a testamentary gift has acted as a ‘wise and just testator’ ‘determined by community standards of what is right and appropriate’ in providing for his or her family and dependents.[28] This also is an objective standard encapsulating a societal norm of the ideal testator. If the court finds that the donor did not meet this objective standard then it may order that family provision be paid by the donor’s estate, to the diminution of the testamentary gifts that were in fact made by the donor.

The difficulty for donors motivated by strong religious faith is that their conduct may well be outside such normative standards; indeed, such donors may pride themselves on acting against such norms. A hypothetical (but not unrealistic) example is that of a Christian who chooses to give away all his or her property as an act of faith in God. Indeed, the equitable undue influence case of Allcard v Skinner involved a similar scenario. Thus, a gift motivated by strong religious beliefs, particularly if those beliefs are outside the mainstream of religious beliefs in Australia, is likely to be more vulnerable to challenge on this ground. Professor Bradney has demonstrated in relation to English law that the application of objective standards in law generally is problematic for persons of strong religious conviction (whom Bradney calls ‘obdurate believers’).[29]

Despite the difficulties that objective standards may cause for donors of strong religious faith, can it be argued that the application of objective standards in law is in fact a good thing? Surely one of the functions of law is to regulate behaviour so that it complies with societal norms? Furthermore, it could be said that the law is simply prioritising other values over the religious autonomy of the donor: protection from potential exploitation and recognition of the financial needs of the donor’s family, for example. In other words, a compromise is being made. This may be so; nonetheless, it is important to be aware of the consequences of the discriminatory impact of objective standards upon gifts motivated by strong religious beliefs. First, such gifts are more vulnerable to challenge and thus security of receipt on the part of donees is correspondingly diminished. Secondly, in many instances it is not the donor who later seeks to overturn the gift, but the donor’s family who would otherwise have stood to benefit. Thus, any discriminatory impact of objective standards that makes the relevant doctrines easier to comply with in relation to religiously motivated gifts may be exploited by persons other than the donor and this makes it important that such doctrines are scrutinised and critically evaluated. To give just one example, being aware that objective standards may impact unfairly on religiously motivated donors is relevant in considering how easily the presumption of equitable undue influence should arise. If the presumption is activated too readily then it is too easy to overturn an autonomous gift; if the presumption is too difficult to raise then there is a danger that gifts tainted by exploitative behaviour will stand.

The content of objective standards

Another danger with objective standards in their application to donors of strong religious faith concerns the content of such standards. The content of objective standards such as the ‘ordinary motives of ordinary men’ and ‘the wise and just testator as determined by community standards of what is right and appropriate’ is likely to reflect the dominant religious and cultural values of the society.[30] This compounds the problems of a donor from a minority religious group who has strong religious beliefs. Not only are they unlikely to meet an objective standard based upon social norms, they are even less likely to meet a standard based on moderate Judeo-Christian or even secular world views (if we accept that these are the most likely influences upon the content of Australian legal standards).[31] The problem is compounded because of our legal system’s doctrine of precedent whereby judges must follow the decisions of higher courts; there may be a time lag in relation to the content of objective standards so that they do not keep apace with changes in societal norms. Thus, even though Australia is indisputably a multicultural society, this fact may take longer to infiltrate the content of objective standards in the law. Furthermore, judges may (consciously or unconsciously) rely upon their own religious acculturation in determining whether objective standards are met. For example, recently an Australian judge (apparently at the suggestion of legal counsel) applied Jesus’ parable of the Forgiving Father in order to decide whether a testator had met the wise and just testator standard in family provision law.[32] Thus, minority religious groups and/or religious groups new to Australia are disadvantaged if the content and application of objective standards in doctrines regulating gift giving encapsulate a moderate Judeo-Christian world view and all religious groups may be disadvantaged by objective standards that encapsulate a secular world view.