Mandatory Arbitration Clauses in Trusts and Their Enforceability

Michael P. Bruyere (Attorney at Law, Lord, Bissell & Brook, LLP) and Meghan D. Marino (J.D., 2007, cum laude, University of Georgia) have recently published their article entitled Mandatory Arbitration Provisions: A Powerful Tool to Prevent Contentious and Costly Trust Litigation, But Are They Enforceable?, 42 Real Prop. Prob. & Tr. J. 351 (2007).

Here is the editor’s synopsis of their article:

This article proposes that the inclusion of mandatory arbitration provisions in trust agreements can aid a grantor in effectuating a seamless distribution of wealth by preventing trust disagreements from erupting into costly litigation. The Article examines whether mandatory arbitration clauses in trust agreements are enforceable under current law by providing an overview of the judicial treatment of such provisions in several states that have statutorily addressed alternate dispute resolution in the context of trust agreements. The authors posit that further statutory reform will be necessary to move beyond the perceived obstacles some courts have found in the legal distinction between trusts and contracts.