What is an arbitration clause in wills
The Supreme Court of Texas upheld an arbitration clause in a trust, and the same reasoning may apply to wills, although the court has not ruled on this question in a will case. Arbitration clauses are usually found in contracts or other agreements. The parties agree to arbitrate. Disputes are submitted to an arbitrator rather than being tried in court. There are perceived cost savings with arbitration, and arbitration can be quicker than normal litigation. One of the main benefits of arbitration is privacy. Litigation is public, arbitration is private.
Even though the beneficiaries did not agree to arbitration, the Supreme Court held that by accepting benefits under the trust, they had agreed to the trust’s arbitration clause. 11-0708.
Arbitration clauses in wills
A testator may not want the world to know about his estate and may prefer that all disputes be settled by arbitration. In the context of a trust, the court held that an arbitration clause was enforceable against a beneficiary who tried to sue a trustee for an accounting. The beneficiary alleged that the arbitration clause was unenforceable against him because he had never agreed to arbitration and that arbitration clauses require the parties’ agreement. The court said that because the beneficiary accepted benefits under the trust, he assented to the arbitration clause (direct benefits estoppel). The beneficiary was also seeking to enforce the trust, further indicating that he assented to its terms. Because the same reasoning can be applied to a beneficiary who accepts benefits under the will or tries to enforce its terms, the court may, at a future date, uphold an arbitration clause in a will if it is asked to decide that question.
Note: In a 2025 case, the Appeals Court ruled that an arbitration clause in a will was enforceable. Hollingsworth v. Swales, 717 SW 3d 655 – Tex: Court of Appeals, 10th Dist. 2025
Contesting a will
Arbitration does not apply to contesting a will because the will contest alleges that the will is not the will of the testator, because the testator was mentally incompetent to make a will, or someone was exercising undue influence over him, or for some other reason. If the will contest is successful, the will is thrown out. There is no arbitration clause because there is no will.