Page 28 - December 2019 Bar Journal

FEATUREESTATE PLANNING

SOMETHING NEW

OR SOMETHING OLD

ADOPTION OF TRUST ARBITRATION BRINGS LONG-STANDING

RESOLUTION ALTERNATIVE TO OHIO

BY TIMOTHY J. GALLAGHER & PAUL R. SHUGAR

T rust arbitration is a new arise concerning them; but if, contrary to legal constructions, declare their sense of the
“I hope, and trust, that no disputes will
legislative development in
Testators intention; and such decision is, to all
expectation, the case should be otherwise
Ohio, but the concept is as
intents and purposes to be as binding on the
old as the United States itself.
from the want of legal expression, or the usual
Parties as if it had been given in the Supreme
No one knows the first
When R.C. §5802.05 became effective as
little has been said on any of the Devises to
time a U.S. estate-planning attorney technical terms, or because too much or too Court of the United States.”
proposed a will- or trust-arbitration clause be consonant with law, My Will and direction part of H.B. 595 on March 22, 2019, Ohio
to a client. What people do know is one of expressly is, that all disputes (if unhappily any joined six other states with statutes that
the country’s most-famous founding fathers should arise) shall be decided by three impartial authorize and enforce trust arbitration.
liked the idea. That man was President and intelligent men, known for their probity Now Ohio trust settlors have statutory
George Washington, and while his teeth and good understanding; two to be chosen support for including arbitration clauses
were not wooden and he likely told a lie, his by the disputants, each having the choice of like the country’s first president.
1799 Last Will and Testament included the one, and the third by those two. Which three R.C. §5802.05 excludes testamentary
following arbitration clause: men thus chosen, shall, unfettered by Law, or trusts and does not allow the arbitration of

R.C. § 5802.05

(A)
A provision in the terms of a trust,
excluding a testamentary trust, that
requires the arbitration of disputes, other
than disputes of the validity of all or a
part of a trust instrument, between or
among the beneficiaries and a fiduciary
under the trust, or a combination of those
persons or entities, is enforceable.

(B)
Unless otherwise specified in the terms
of the trust, a trust provision requiring
arbitration as described in division (A) of
this section shall be presumed to require
binding arbitration under Chapter 2711 of
the Revised Code.

Became effective as part of H.B. 595 on
March 22, 2019

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