Jessica Beess and Chrostin has published “Mandatory Arbitration Clauses in Donative Instruments: A Taxonomy of Disputes and Type Differentiated Analysis” in the Real Property, Trust and Estate Law Journal. The abstract reads as follows:
Arbitration clauses have become increasingly more common in wills and trusts as a means to avoid the court system, and as a way to benefit from the alleged advantages of alternative dispute resolution. The majority of current literature on this topic focuses on whether the beneficiary has consented to arbitration. However, this article poses a different question—even if mandatory arbitration clauses in testamentary instruments are enforceable, should they be enforceable as a matter of public policy? The author asserts that analyzing testamentary disputes by type—validity disputes and administrative disputes—reveals that the benefits of arbitration do not translate to either type of dispute.
Read full article at Mandatory Arbitration Clauses in Donative Instruments: A Taxonomy of Disputes and Type Differentiated Analysis (ABA membership required).