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Fla. L. Rev. Forum

David Horton
The Limits of Testamentary Arbitration
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Agreement

In The Will As An Implied Unilateral Arbitration Contract, Professor E. Gary Spitko argues that there is an implied unilateral contract between the government and individual property owners. He claims that the state promises to distribute a person’s assets at death according to their wishes (including their desire to compel arbitration of any claim relating to their estate) in return for the person generating wealth during their life. He therefore concludes that even people who are not mentioned in the will are either equitably estopped from challenging the arbitration provision or bound as third party beneficiaries of this “donative freedom contract.” In this invited reply to the Florida Law Review Forum, I explain why I respectfully disagree with Professor Spitko. I argue that the Federal Arbitration Act and its state analogues do not cover claims brought by non-consenting parties. In addition, I contend that this exclusion is necessary to prevent opportunists from using testamentary arbitration to insulate their conduct from judicial review. Read more.

Fla. L. Rev. Forum

S.I. Strong
International Implications of the Will As An Implied Unilateral Arbitration Contract

Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Agreement

In his article, The Will As An Implied Unilateral Arbitration Contract, Professor Gary Spitko offers an intriguing and innovative argument about how arbitration provisions in wills can be enforced even over the objection of a beneficiary and even in cases where the beneficiary seeks to set aside the will in its entirety. While I do not agree with all of the assertions in that Article (for example, the conclusion that “a consensus is developing that a testator may not compel arbitration of contests to her will” appears somewhat premature, given a number of probate cases not discussed by Professor Spitko and recent developments in the arbitration of internal trust disputes), the basic premise of the discussion—that arbitration provisions in wills can and should be considered to be contractual in nature and thus enforceable—is sound as a matter of U.S. probate and arbitration law. Read more.

Environmental Law

Florida Constitutional Law