Gone But Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through Minority-Culture Arbitration

41 Pages Posted: 31 May 2015 Last revised: 6 Jun 2015

See all articles by E. Gary Spitko

E. Gary Spitko

Santa Clara University - School of Law

Date Written: 1999


In a variety of contexts, cultural minorities have cause to fear adjudication of their legal rights and responsibilities in a legal system dominated by majority-culture personnel (most notably including judges and jurors). This is particularly true when cultural minorities attempt to use formal legal processes to give effect to choices that are inconsistent with prevailing community norms. In such cases, the substantive merit of their legal claims is at risk of being subjugated to majoritarian values, through a process that relies on members of the majority culture to vindicate the substantive rights at issue. This phenomenon presents a cruel dilemma: cultural minorities must either forego the formal enforcement of their legal rights or trust enforcement of their rights to a culturally-biased forum. This Article proposes a solution to this Catch-22, at least insofar as testamentary freedom is concerned.

Our society is committed in principle to the ideal of testamentary freedom. In practice, however, the law disfavors testamentary dispositions that deviate from the norm; it prefers gifts to the testator's legal spouse and close blood relations over gifts to other potential beneficiaries. Thus, for example, the matriarch who disinherits her children in favor of the guru who gave her spiritual comfort in her declining years faces a greater likelihood that her estate plan will be invalidated by a trier of fact whose sense of propriety is offended by the gift.

Using the “abhorrent” testator as the focal point for an exploration of the larger problem of systemic bias, this Article considers testator-compelled arbitration as a means for overcoming the trier of fact's propensity to invalidate any estate plan that does not conform to majoritarian cultural norms. Part I of this Article identifies the problem and explores how the trier of fact in a will contest, wittingly or unwittingly, may use legal doctrines intended to safeguard testamentary freedom to undermine the testamentary freedom of the nonconforming testator. Part II of this Article suggests a means for alleviating this threat to the nonconforming testator's estate plan. Since the threat arises from distinctions between the testator's culture and those of the trier of fact, the proposed solution focuses on cultural understanding. Part II recommends that the nonconforming testator direct in her will that any contest concerning the will shall be adjudicated by an arbitrator appointed by the testator. Thus, the testator will be able to select a decision-maker who is familiar with and respectful of the values that informed the drafting of her estate plan. Lastly, Part III of this Article considers and rejects several objections to testator-compelled arbitration.

Suggested Citation

Spitko, E. Gary, Gone But Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through Minority-Culture Arbitration (1999). 49 Case Western Reserve Law Review 275-314 (1999). Available at SSRN: https://ssrn.com/abstract=2612142

E. Gary Spitko (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-1771 (Phone)

HOME PAGE: http://www.scu.edu/law/FacWebPage/Spitko/

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