In this probate matter, the court squarely considers, as a matter of first impression, the validity of an arbitration provision contained in a testamentary instrument. This is the second time the parties appear before the court challenging the arbitration provision set forth in the 2002 last will and testament (2002 LWT) of Samuel P. Hekemian, who was survived by his wife and four sons, Peter, Jeffrey, Mark, and Richard. In the 2002 LWT, Samuel appointed Peter and Samuel's longtime advisor, Edward G. Imperatore (together, appellants) as co-executors of the will and co-trustees of the three testamentary trusts established therein.
This court previously affirmed, in an unpublished opinion, a Chancery court order denying appellants' motion to compel arbitration under the 2002 LWT. In re Est. of Hekemian, No. A-1774-21 (App. Div. Jan. 13, 2023). At that time, this court was not persuaded Richard's request for a formal accounting under Rule 4:87-1 and N.J.S.A. 3B:17-2, constituted a dispute triggering the arbitration provision. The court also recognized Richard had not received a distribution or loan under the 2002 LWT. Unlike the present matter, Sandra was not a party to the prior action. In that appeal, the court did not expressly decide whether the arbitration provision was valid and enforceable under New Jersey law, but made certain observations about its viability.
Shortly after this court issued its opinion, Sandra joined the action. Unlike Richard, Sandra has received distributions under the 2002 LWT. Appellants filed a verified complaint for the settlement of their first intermediate accounting of Samuel's estate. Sandra, joined by Richard, filed exceptions to appellants' accounting. The Chancery judge denied appellants' ensuing application to compel arbitration.
This court now holds the arbitration provision set forth in the 2002 LWT fails for lack of mutual assent to the arbitral forum between Samuel and Sandra, Richard, and all interested parties, and is contrary to this State's statutory scheme governing the Administration of Estates of Decedents and Others Act, N.J.S.A. 3B:1-1 to :29-1. The court therefore rejects appellants' renewed contentions, including Sandra agreed to arbitrate her disputes under the 2002 LWT because she and Samuel executed "reciprocal" wills the previous year, containing the same arbitration provision at issue. The court therefore affirms the order under review.