For no reason other than I find this bit of historical/T&E crossover trivia interesting, here’s a copy of the arbitration clause contained in George Washington’s will:
But having endeavoured to be plain, and explicit in all Devises–even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants–each having the choice of one–and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.
Not that I’m taking any credit for uncovering this gem all on my own, this clause has been popping up on various blogs for some time [click here, here, here].
Arbitration clauses in wills & trusts are a “must have”:
Washington was on to something when he incorporated an arbitration clause into his will. Two centuries later, it’s still a good idea. First, if your arbitration clause is properly drafted, your case gets decided by a specialized trusts and estates lawyer (or lawyers) with real-life experience handling complex estate matters (usually 10+ years) vs. a randomly assigned state-court judge, who almost never has any private-practice experience dealing with complex estate matters (most judges are former prosecutors). Second, by privatizing the process the parties can, to the extent permitted by law (and there are limitations), opt out of the dysfunctions inherent to an overworked and underfunded state court system. As I explain here, it’s this second point that tips the scales for me.
The trouble with arbitration clauses in wills and trusts is that historically it was unclear if a client could impose mandatory arbitration on the beneficiaries of his or her estate/trust. In Florida this uncertainty was eliminated in 2007 with the adoption of F.S. 731.401, expressly authorizing mandatory arbitration clauses in wills and trusts (which I wrote about here). In that blog post I also discussed a few sample arbitration clauses for wills and trusts, including the sample clause published by the American Arbitration Association (click here) and the sample clauses provided in an excellent ACTEC article entitled Resolving Disputes with Ease and Grace.