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.