The Limits of Testamentary Arbitration

This is an invited reply to Professor E. Gary Spitko's provocative and creative article, The Will as an Implied Unilateral Arbitration Contract. Professor Spitko argues that arbitration clauses in wills are enforceable because there is a "donative freedom contract" between the state and property owners. As a result, Professor Spitko concludes that all parties -- including omitted heirs who allege that a will is invalid -- are compelled to arbitrate any claim relating to the estate. Conversely, I explain why the Federal Arbitration Act and its state analogues are narrower. In my view, they exclude lawsuits filed by individuals who have not accepted money or property under the terms of the instrument. In addition, I contend that this carve out is necessary to prevent opportunists from using testamentary arbitration to insulate their conduct from judicial review