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.