Florida Law Review Forum

Mary F. Radford
Response to Professor Spitko’s The Will As An Implied Unilateral Arbitration Contract And An Alternative Approach
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Contract

I read Professor Gary Spitko’s article entitled The Will As an Implied Unilateral Arbitration Contract with great interest. Professor Spitko’s proposal to characterize a will as an implied unilateral contract between the individual donor (testator) and the state is both novel and far-reaching. By way of background, I have for years advocated strongly in favor of the use of mediation to resolve will challenges and other disputes relating to fiduciary law. I am also a relatively recently-converted proponent of the enforcement of mandatory arbitration clauses in will and trusts disputes. As such, I applaud Professor Spitko for his theory and would fervently like for courts to see the wisdom of his approach. However, the pragmatic and albeit cynical aspect of my intellectual temperament leads me to play devil’s advocate. The arguments I present here against Professor Spitko’s approach are admittedly simplistic, but they have forced me to attempt to come up with an alternative approach that may serve as a back-up in the event that courts do not see the wisdom of Professor Spitko’s theory. Read more.