Arbitration clauses in wills took a major hit in New Jersey when the Appellate Division decided In the Matter of the Estate of Samuel P. Hekemian. In this published April 21, 2026 opinion, the court addressed a question of first impression: can a will force beneficiaries and interested parties to arbitrate probate disputes instead of going to court? The court said no.
The Case Background
Samuel P. Hekemian’s 2002 will included a broad arbitration provision. It required “[a]ny dispute” involving interpretation of the will, the trusts created under it, or the executors’ administration to go to arbitration. It also stated that arbitration would be the “exclusive remedy” and that the arbitrator’s decision would be final and not appealable to any court. After disputes arose over the estate accounting, the co-executors moved to compel arbitration against Samuel’s widow, Sandra, and his son, Richard. The Chancery Division denied that motion, and the Appellate Division affirmed.
Why Arbitration Clauses Matter
The central legal issue was whether an arbitration clause inside a testamentary instrument can bind interested parties under New Jersey law. The executors argued that the New Jersey Arbitration Act favored enforcement, that Sandra had effectively agreed through reciprocal wills, and that Samuel’s testamentary intent should control. The court rejected those arguments and focused on a basic principle of arbitration law: arbitration depends on agreement. A valid arbitration provision must reflect mutual assent and a knowing waiver of the right to litigate in court.
The Holding
The Appellate Division held that the arbitration provision in Samuel’s will was invalid and unenforceable. The court gave two main reasons. First, a will is a unilateral disposition of property, not a negotiated contract. Because the interested parties did not bargain for the arbitration clause, they did not mutually assent to arbitrate. Second, the clause did not clearly explain that beneficiaries and other interested parties were giving up their right to bring claims in court, which New Jersey law requires for a valid waiver of judicial rights.
The court also held that enforcing arbitration clauses in wills would conflict with New Jersey’s Probate Code. The Probate Code gives the Superior Court broad authority over probate, fiduciary accountings, trusts, executor conduct, and other estate disputes. In the court’s view, private arbitration cannot displace that statutory judicial role merely because a testator says so in a will.
Why Arbitration Clauses in Wills Matter
This decision matters well beyond the Hekemian estate. Estate planners sometimes include arbitration language in wills or trusts to try to reduce litigation, preserve privacy, or streamline family disputes. This case warns that, at least in New Jersey, a will cannot force that result when the interested parties never clearly agreed to arbitrate. Probate practitioners should read this opinion as a strong signal that courts will protect their supervisory role in estate administration.
The opinion also gives litigators a practical roadmap. If a fiduciary tries to compel arbitration based solely on language in a will, counsel should examine mutual assent, waiver, and the Probate Code’s grant of authority to the Superior Court. Those issues now sit at the center of New Jersey probate arbitration disputes.
In short, arbitration clauses in wills may sound efficient, but this case makes clear that efficiency does not override consent or the court’s statutory probate function in New Jersey.
