Article on Mandatory Arbitration Clauses in Donative Instruments

Jessica Beess und Chrostin (Associate, King & Spalding, New York City) recently published an article entitled, Mandatory Arbitration Clauses in Donative Instruments: A Taxonomy of Disputes and Type Differentiated Analysis, 49 Real Property, Trust and Estate Law Journal, no. 2, 397 (Fall 2014). Provided below is the Author’s synopsis:

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.