January 04, 2017 Article

Beware the Enforceability of Arbitration Clauses in Wills and Trusts

The arguments for and against enforcement, and recent cases.

by Joseph D. Kropp

It has become more common to include mandatory arbitration clauses in wills and trusts, but there is very limited case law on their enforceability. This article reviews the arguments for and against enforcement, and recent cases.

To understand the debate, you must go back. Way back in the early days, English courts rejected mandatory arbitration and viewed it as an ouster of court jurisdiction and against public policy. Phillips v. Bury, 89 Eng. Rep. 624 (1690). The most widely known early example of an arbitration clause in the United States was the colorful language of George Washington’s 1799 will:

My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for probity and good understanding: Two to be chosen by the disputants—each having the choice of one—and the third by those two . . . and such decision is, to all intents and purposes to be binding on the Parties as if it had been given in Supreme Court of the United States.

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