The recent Chancery Division decision in Matter of Estate of Hekemian raises an issue of first impression in New Jersey that calls for the intervention of the Legislature. The case involves a dispute under a will that set up a number of testamentary trusts. After the will was probated, one of the beneficiaries requested an early distribution or loan from the trusts. When the trustees refused, he sued for an accounting. Defendants responded by moving to compel arbitration under the arbitration clause of the will, which provided that "any dispute regarding the interpretation of this Will or the trusts provided herein, or arising out of the action of the executors and/or others acting hereunder in a fiduciary capacity" was subject to arbitration under the procedure provided in the clause, and that "arbitration shall be the sole remedy" for such disputes.

In a careful and well-reasoned opinion, the chancery court denied arbitration, holding that the arbitration clause was unenforceable on two grounds. First, the court analogized it to an in terrorem clause, which is unenforceable when the objector has probable cause. Second, the court reasoned that arbitration is a matter of contract and that the relation of testator and beneficiary is not contractual. In reaching that result it discussed at length and rejected a Texas Supreme Court decision that had upheld a similar arbitration provision on the grounds that arbitration is favored as a matter of public policy, that the testator's intent should be enforced and that the beneficiary implicitly agreed to arbitration by claiming benefits under the instrument.

Whether a testator can compel disputes about the interpretation and execution of his will to be subject to arbitration is an issue of great consequence for the transmission of property at death. As the trial court opinion illustrates, there are substantial arguments to be made on both sides of the issue. While the decision denying arbitration is appealable as of right under R. 2:2-3(a), we do not know whether the plaintiff intends to appeal. If he does, we hope to see the policy issues thoroughly illuminated by amici curiae. In any event, we believe that the issue is one that can best be explored by legislative hearings and eventual legislation.