Santa Clara University School of Law professor Gary Spitko has published an article, “The Will as an Implied Unilateral Arbitration Contract”, in the Florida Law Review.
Abstract:
A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by his contest, seeks to increase his inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that a will is not a contract and the opposition to enforcement of testator-compelled arbitration provisions that arises from that understanding.
Reference:
Gary Spitko, The Will as an Implied Unilateral Arbitration Contract, 67 FLORIDA LAW REVIEW
