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The Federal Arbitration Act and the Issue of Wills

Thursday, October, 6, 2011

The Federal Arbitration Act has reshaped American jurisprudence in major ways, taking cases out of court and handing decision-making authority to panels of arbitration attorneys even in the face of state laws that would appear to forbid arbitration in specific classes of dispute.  This has happened because the act, being federal, is presumed to have supremacy over conflicting state laws and because the Supreme Court in recent decades has consistently upheld an expansionist view of the Federal Arbitration Act's powers themselves.


Now a new issue appears to loom on the horizon: the question of whether the Federal Arbitration Act can be held to apply to wills the way it applies now to real estate arbitration and other contract-based disputes.


Federal Arbitration Act Specifies "Contracts"


At first glance, it would seem that the FAA would not apply in the case of wills, since wills are not contracts in the traditional sense.  A contract in law requires a ‘meeting of the minds’ of the parties involved, and in the case of a will, the beneficiary may not even have been informed in advance, let alone consented, to any particular bequest.


However, recent Supreme Court interpretations of the word "contract" indicate that wills might indeed qualify under the revised definitions.  The court had held that an arbitration clause in a document could be regarded as a contract in and of itself, regardless of whether the larger document containing it has otherwise met the criteria for a legal contract.