A Discussion Forum for the Mississippi Estate Planning Community

The Federal Arbitration Act and Testamentary Instruments

My wife and I just finished watching the BBC production of Charles Dickens’ novel, Bleak House, which I highly recommend. The plot centers around the estate of  Jarndyce and Jarndyce which had “become so complicated that no man alive knows what it means”.


Back in February, I blogged about a paper authored by Law professors, Lela P. Love, and Stewart E. Sterk,  The paper, is titled “Leaving More than Money: Mediation Clauses in Estate Planning Documents” and is available for download here. In it the authors argue that mediation clauses can mitigate the financial and familial costs associated with estate litigation.

In a more recent work, Professor David Horton of the Loyola School of Law in Los Angeles, discusses the Federal Arbitration Act, and it’s implications for disputes involving wills and trusts. He begins the abstract of his paper by stating,

The U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has made arbitration clauses ubiquitous in consumer and employment contracts, and provoked heated debate. Recently, though, arbitration clauses have become common in a different context: wills and trusts. Courts have reached wildly different conclusions about whether these provisions are enforceable under state arbitration law. However, no judge, scholar, or litigant has considered the more important question of whether the FAA governs these terms.

Horton’s paper traces the history and evolution of testamentary arbitration, and examines whether the FAA applies to arbitration clauses in estate plans.

I first examine the statute’s text and legislative history, and conclude that Congress intended the FAA only to govern “contracts.” Nevertheless, I show that the Court has stretched the definition of “contract” for the purposes of the FAA. Indeed, the Court has predicated arbitration on the mere fact that the parties have entered into a consensual relationship, even if it does not meet the test for contractual validity. I then argue that estate plans, which arise from mutual assent and feature elements of exchange, are “contracts” under the FAA. Finally, I analyze how some of the most challenging features of the Court’s interpretation of the FAA – including the non-arbitrability doctrine, the separability rule, and the statute’s preemptive ambit – would play out in the field of wills and trusts. By doing so, I seek not only to provide guidance for courts and policymakers, but to illustrate that testamentary arbitration may not suffer from some of the flaws that make contractual arbitration so polarizing.

To download the complete article, see: The Federal Arbitration Act and Testamentary Instruments by David Horton :: SSRN

Horton, David, The Federal Arbitration Act and Testamentary Instruments (September 1, 2011). North Carolina Law Review, Vol. 90, 2012; Loyola-LA Legal Studies Paper No. 2011-29. Available at SSRN:

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