![handle is hein.journals/flrf68 and id is 1 raw text is:
INTERNATIONAL IMPLICATIONS OF THE WILL AS AN
IMPLIED UNILATERAL ARBITRATION CONTRACT
S.L Strong*
In his article, The Will As An Implied Unilateral Arbitration Contract,
Professor Gary Spitko offers an intriguing and innovative argument about
how arbitration provisions in wills can be enforced even over the
objection of a beneficiary and even in cases where the beneficiary seeks
to set aside the will in its entirety.1 While I do not agree with all of the
assertions in that Article (for example, the conclusion that a consensus
is developing that a testator may not compel arbitration of contests to her
will'2 appears somewhat premature, given a number of probate cases not
discussed by Professor Spitko3 and recent developments in the arbitration
of internal trust disputes4), the basic premise of the discussion-that
arbitration provisions in wills can and should be considered to be
contractual in nature and thus enforceable-is sound as a matter of U.S.
probate and arbitration law.5
One item that Professor Spitko does not address in detail is whether
and to what extent his theory would apply to wills that are international
in nature. This is an important issue to consider, given the increasing
number of people who live outside their countries of origin as a result of
globalization.6 The situation has been further exacerbated by the recent
* Ph.D. (law), University of Cambridge (U.K.); D.Phil., University of Oxford (U.K.);
J.D., Duke University; M.P.W., University of Southern California; B.A., University of California,
Davis. The author is the Manley 0. Hudson Professor of Law at the University of Missouri and is
qualified as a lawyer in New York, Illinois, and Missouri as well as a solicitor in England and
Wales.
1. See E. Gary Spitko, The WillAs An Implied Unilateral Arbitration Agreement, 68 FLA.
L. REv. 49 (2016).
2. Id. at 53.
3. See, e.g., In re Meredith's Estate, 266 N.W. 351, 354, 356 (Mich. 1936), superseded by
implication by In re Nestorovski Estate, 769 N.W.2d 720, 732 (Mich. Ct. App. 2009); In re
Blumenkrantz, 824 N.Y.S.2d 884, 887 (Sur. Ct. Nassau Co. 2006), superseding In re Jacobovitz'
Will, 295 N.Y.S.2d 527, 529 (Sur. Ct. Nassau Co. 1968); see also Spitko, supra note 1, at 58 n.33
(citing the initial negative decisions but not referring to the more recent decisions).
4. Arbitration of trust disputes has been embraced in a variety of U.S. and foreign
jurisdictions. See, e.g., ARBITRATION OF TRUST DISPUTES: ISSUES IN NATIONAL AND
INTERNATIONAL LAW (S.I. Strong ed., 2016) [hereinafter ARBITRATION OF TRUST DISPUTES]
(examining developments in arbitration of trust disputes both domestically and internationally);
S.I. Strong, Arbitration of Trust Law Disputes: Two Bodies of Law Collide, 45 VAND. J.
TRANSNAT'L L. 1157 (2012) [hereinafter Strong, Two Bodies] (discussing trust law and arbitration
law in the context of international commercial arbitration).
5. See Spitko, supra note 1, at 98.
6. A significant number of Americans live abroad, although precise numbers are difficult
to estimate. See Joe Costanzo & Amanda Klekowski von Koppenfels, Counting the Uncountable:
Overseas Americans, MIGRATION POL'Y INST. (May 17, 2013), http://www.migration
policy.org/article/counting-uncountable-overseas-americans (placing the number between 2.2](ViewImageLocal?handle=hein.journals/flrf68&div=1&collection=&method=preview&ext=.png&size=3)
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