The Limits of Testamentary Arbitration

58 Florida Law Review Forum, Vol. 68, 2016

11 Pages Posted: 15 Sep 2016 Last revised: 2 Oct 2016

David Horton

University of California, Davis - School of Law

Date Written: September 13, 2016

Abstract

This is an invited reply to Professor E. Gary Spitko's provocative and creative article, The Will as an Implied Unilateral Arbitration Contract. Professor Spitko argues that arbitration clauses in wills are enforceable because there is a "donative freedom contract" between the state and property owners. As a result, Professor Spitko concludes that all parties -- including omitted heirs who allege that a will is invalid -- are compelled to arbitrate any claim relating to the estate.

Conversely, I explain why the Federal Arbitration Act and its state analogues are narrower. In my view, they exclude lawsuits filed by individuals who have not accepted money or property under the terms of the instrument. In addition, I contend that this carve out is necessary to prevent opportunists from using testamentary arbitration to insulate their conduct from judicial review.

Keywords: FAA, arbitration, wills, trusts, intestacy, Spitko, The Will as an Implied Unilateral Arbitration Contract, testamentary arbitration

Suggested Citation

Horton, David, The Limits of Testamentary Arbitration (September 13, 2016). 58 Florida Law Review Forum, Vol. 68, 2016. Available at SSRN: https://ssrn.com/abstract=2838561

David Horton (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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