S.I. Strong, professor of law at University of Missouri School of Law in Columbia, Mo.
Professor S.I. Strong’s groundbreaking article focuses on the future of arbitration of trust and estate disputes under the relatively new E.U. regulation 650/2012 (the regulation) (also known as Brussel IV), which has a very broad scope, affecting not only parties and practitioners in E.U. member states but also the estate plans of non-E.U. nationals, such as U.S. citizens living and dying in an E.U. member state. This new regulation went into effect on Aug. 17, 2015.
Prof. Strong is a dual admitted multi-jurisdictional U.S. lawyer as well as a solicitor in England and Wales. She initially provides a brief update on the state of trust arbitration around the world, including the United States. To date, she reports five states (Arizona, Florida, Missouri, New Hampshire and South Dakota) have adopted statutes explicitly recognizing the validity of an arbitration provision found in a trust. There’s also support for trust arbitration in the Uniform Trust Code. Outside of these states, trust arbitration has been adopted in Guernsey and the Bahamas, and New Zealand is poised to follow among common law countries. Most relevant, she painstakingly footnotes evidence that a number of civil law countries (which comprise almost all of the E.U. member states, as the United Kingdom is exiting the European Union) have also shown support for arbitration of trusts or their civil law analogues.
The regulation is based on “habitual residence,” with the result that even a non-E.U. national, such as a U.S. expat who’s habitually resident in an E.U. member state at the time of his death, will be subject to the regulation’s principles and procedures.
U.S. estate-planning lawyers don’t have longstanding familiarity with arbitration clauses in trusts or wills for a couple of reasons. First, in 1917, Austin Wakemen Scott (who was a Harvard Law School professor and is best known as the author of Scott on Trusts) wrote an influential article that laid out the fundamental differences at the time between the law of trusts and the law of contracts. Regrettably, that distinction has lived on 100 years later so that today in the United States, we have statutes in a majority of states that only enforce arbitration clauses in contracts and not in trusts and perpetuate Scott’s now dated view of the state of trust law in a modern flat world. Second, the provisions in some state constitutions and other state statutes have been construed to require disputes to be resolved in court.
Unfortunately, of the few U.S. state courts that have considered the enforceability of arbitration clauses in a trust, all have agreed that arbitration clauses aren’t binding on beneficiaries or trustees because they’re only binding when included in a written contract. For example, in Michigan, New York and Pennsylvania, courts have determined that testamentary capacity must be determined in court and can’t be delegated to an arbitrator. Moreover, the N.Y. state constitution provides that the N.Y. Surrogate’s Court has exclusive jurisdiction over all actions relating to a decedent resident in or owning tangible or real property located in the state at death.
While provisions in both testamentary trusts and non-testamentary trusts “requiring the arbitration of trust-related disputes could be enforceable under Regulation 650/2012,” Prof. Strong acknowledges that it’s “unclear” as to how questions of jurisdiction, applicable law and recognition of judgments (enforcement) are to be handled in cases falling outside the regulation (that is, when there’s no mandatory arbitration clause included in the will or trust instrument).
A habitual resident of an E.U. member state, such as a U.S. citizen permanently residing in an E.U. member state, has a limited amount of autonomy as to the choice of law and choice of forum to govern his succession matters. The regulation contemplates the possibility that U.S. law could control an expat decedent’s “succession as a whole” and may refer to the law of such decedent’s nationality. Prof. Strong raises an important issue by asking whether a U.S. national would have to choose the law of the country from where he was born. Most questions of trust arbitration in the United States have been decided as a matter of state law. The regulation provides that the law referring to the nationality of the decedent shall be the law of the territorial unit with the closest connection to the decedent as a national of a country (such as the United States) with multiple territorial legal systems but no internal conflict-of-laws rules regarding succession. The professor ponders what the U.S. estate planner advising a U.S. expat should do because the closest connection to the decedent at death can’t be determined until death occurs.
This is an important article for lawyers with cross-border families who are ripe for contentious disputes when a family has spread its wings beyond the country of origin and has family members residing in different E.U. countries or has a family member who’s a U.S. citizen permanently residing in an E.U. member state.
The public policy reasons for allowing greater access to arbitration in trusts and estates disputes is compelling. First, it’s more efficient and saves time and money. Rather than have the trust or estate depleted to pay for time-consuming costly litigation that may entail lengthy discovery, use of arbitration typically offers abbreviated discovery. Second, and perhaps most important, is that arbitration proceedings and their outcomes can be kept private, whereas litigation takes place in court in a public forum. Fear of such an all-out onslaught on the reputation of a deceased settlor may force a fiduciary to reward a zealous contestant threatening to smear the decedent’s name in public by offering a very generous settlement that depletes the assets remaining for other beneficiaries and heirs.
Prof. Strong’s conclusion that it’s only a matter of time before the viability of a trust arbitration provision is considered under the regulation is on point. A court’s rationale will likely be traced back to the topics covered in this article. She contemplates that a court in an E.U. member state would only overturn an arbitration award if it’s “manifestly contrary to public policy” in the member state of enforcement. I believe her groundbreaking work on the frontier of arbitration in trusts and estates disputes in Europe will indeed shed some light on how trusts and estates arbitration can and should work when considered by courts in E.U. member states in the not too distant future.