Enforceability of Mandatory Arbitration Clauses in Wills and Trusts

Dominic J. Campisi (Evans, Latham, Harris and Campisi PC, San Francisco) has recently published his article entitled Mandatory Arbitration in Probate and Trust Disputes: Recent Decisions, J. Nat’l College Prob. Judges, Fall 2007, at 13.

Here are some excerpts from the article:

In case of will or trust contests, the ability to conduct discovery (particularly in areas involving capacity or undue influence * * *) is crucial.  The circumscribed discovery procedures allowed in some arbitration agreements would prove inadequate to gather the necessary evidence.

Several recent cases have rejected arbitration agreements contained in trust instruments on the grounds that trusts are not contracts and therefore could not meet the requirements for arbitration under the applicable local statutes.

Mr. Campisi also discusses due process issues and whether the agreements could bind non-signers.