A few days ago, your faithful lawblogger attended a seminar on arbitration. One of the interesting tidbits of the course was that George Washington had a provision in his will requiring all disputes be arbitrated rather than litigated. It would seem that the aim of the father of our country to foster means of alternate dispute resolution more than two hundred years ago clearly placed him ahead of his time!

Even though it may seem like a good idea to reach beyond the grave and require that disputes involving estates be arbitrated rather than litigated, this would be in clear conflict with the laws of New York which prohibit arbitration in such situations. Obviously, this might deny the Surrogate the power to review the conduct of fiduciaries acting in place of the decedent and to force them to account where necessary. If arbitration were to be allowed, it might compromise the rights of infants or of creditors of the decedent.

It is also important to keep in mind the fact that the driving philosophy adhered to in Surrogate’s Court is to determine and achieve the true desires of the maker of a will. Therefore, while the intention of a testator to have disputes settled by arbitration could be achieved by enforcing such a clause, there is no guarantee that the arbitration process would operate successfully to determine and to achieve the overall intention of the testator insofar as distributing his or her assets would be concerned.

Courts have held , however, that where one has entered into an enforceable agreement during his or her lifetime, arbitration clauses in that agreement will be upheld. Therefore, the estate will be required to be involved in the  arbitration of disputes arising under such a contract.