A landmark ruling from the New Jersey Appellate Division has settled one of the most contentious questions in Garden State probate law: a testator cannot force beneficiaries into private arbitration by including an arbitration clause in their will. The decision in In the Matter of the Estate of Samuel P. Hekemian (Docket No. A-3001-24) is now published, binding precedent across all of New Jersey — and it has sweeping implications for families, fiduciaries, and estate planners alike.
Background: The Hekemian Family and a Contested Fortune
Samuel P. Hekemian was a prominent figure in New Jersey real estate. He died in August 2018, leaving behind his wife Sandra, four sons — Peter, Jeffrey, Mark, and Richard — and a carefully drafted 2002 Last Will and Testament (the “2002 LWT”) that established three testamentary trusts of significant value.
Samuel appointed his son Peter and his longtime advisor, attorney Edward G. Imperatore, as co-executors of the estate and co-trustees of the trusts. The will also included an unusual provision: a mandatory arbitration clause, directing that all disputes related to the will and trusts be resolved exclusively through private arbitration — with no right of appeal to any court.
After Samuel’s death, his son Richard sought an early distribution or a loan from one of the trusts. When that request was denied and communications stalled, Richard filed a legal action to compel an accounting. What followed was years of litigation that ultimately produced one of the most significant probate opinions in New Jersey history.
The Arbitration Clause at Issue
The will’s “Article Seventeenth” was sweeping in scope. It directed that any dispute about the interpretation of the will, the administration of the trusts, or the conduct of the fiduciaries would go to private arbitration. It further declared that the arbitrator’s decision would be “final and binding” and “not appealable to any court of law.”
“Arbitration shall be the exclusive remedy for resolving disputes concerning this Will and the trusts created hereunder.”
The co-executors argued that Richard — and later Sandra, who joined the action after filing exceptions to the estate accounting — were bound by this clause. Their theory: by seeking benefits under the will, beneficiaries implicitly consent to its terms, including arbitration.
New Jersey courts rejected that argument at every level.
The Legal Journey
What the Court Actually Decided
Written by Judge Rose and decided April 21, 2026, the published opinion in A-3001-24 resolved — as a matter of first impression — whether an arbitration provision in a will is valid and enforceable in New Jersey. The three-judge panel (Judges Gooden Brown, Rose, and Torregrosso-O’Connor) answered with a clear and consequential “no,” grounding its holding in two independent bases.
Ground One: No mutual assent — a will is not a contract
Under the New Jersey Arbitration Act (N.J.S.A. 2A:23B-1 et seq.), an enforceable arbitration agreement requires mutual assent — both parties must knowingly agree, and that agreement must include a clear waiver of the right to sue in court. The court relied on the controlling standard from Atalese v. U.S. Legal Services Group, 219 N.J. 430 (2014): an arbitration clause must explicitly explain that the party is relinquishing the right to bring a claim in court. Article Seventeenth failed that test entirely.
A will, the court reaffirmed, “is a unilateral disposition of property” — it reflects only the testator’s wishes and requires no agreement from anyone else to take effect. Beneficiaries never sign the will. They never negotiate its terms. They are given no opportunity to consider or reject the arbitration clause. The court held that none of the interested parties — including Richard (who sought a distribution) or Sandra (who had already received distributions) — ever agreed to arbitrate or knowingly waived their right to litigate in the Superior Court.
The “reciprocal wills” argument rejected
The co-executors raised a novel theory as to Sandra specifically: because Samuel and Sandra had executed substantially similar “reciprocal” wills in 2001 — prepared by the same attorney and containing the same arbitration clause — Sandra had mutually assented to arbitrate. The court disagreed. Even if Article Seventeenth satisfied the NJAA’s formation requirement, the provision still failed to explain that Sandra — or any interested party — was relinquishing the right to pursue claims in court. Without that explicit waiver language required by Atalese, no binding arbitration agreement existed regardless of the wills’ similarity.
The “sophisticated parties” exception did not apply
Appellants also argued that, under the court’s own decision in County of Passaic v. Horizon Healthcare Services, 474 N.J. Super. 498 (App. Div. 2023), sophisticated commercial parties need not have explicit waiver language. The court distinguished that case sharply: there, two parties with a seventeen-year business relationship negotiated multiple contracts with counsel and fully understood the difference between court and arbitration. Here, the record contained no evidence that Sandra, Richard, or any interested party understood they were surrendering access to the courts by virtue of provisions in a will.
Ground Two: The Probate Code vests exclusive authority in the courts
Even setting contract principles aside, the court held that arbitration clauses in wills are contrary to New Jersey’s statutory scheme. The Probate Code grants the Superior Court “full authority to hear and determine all controversies respecting wills, trusts, and estates, and full authority over the accounts of fiduciaries” (N.J.S.A. 3B:2-2). The court catalogued the breadth of that mandate: courts admit wills to probate (N.J.S.A. 3B:3-17, 3B:3-18), appoint trustees (N.J.S.A. 3B:11-4.1), remove fiduciaries for cause (N.J.S.A. 3B:14-18), require and settle accountings (N.J.S.A. 3B:17-2, 3B:17-3), compel co-fiduciaries to account (N.J.S.A. 3B:17-4), and examine accountants under oath when exceptions are filed (N.J.S.A. 3B:17-6). Routing estate disputes to private arbitration would eliminate the courts’ expected oversight role — a result the Legislature never authorized.
“Enforcement of an arbitration clause in a testamentary instrument is contrary to the court’s role underlying the Probate Code and inconsistent with our State’s contract principles.”
The court’s holding was deliberately broad: even where a testator clearly intended arbitration to be the exclusive remedy — as Samuel expressly stated in his will — that intent cannot override the rights of interested parties or the statutory authority of the Superior Court.
Key Takeaways for New Jersey Families
No matter how carefully drafted, a provision purporting to force beneficiaries into private arbitration will not be upheld in New Jersey courts.
If you are a beneficiary and your rights are being violated, you have a statutory right to seek judicial relief — regardless of what the will says.
Fiduciaries cannot use an arbitration clause to shield themselves from court scrutiny. Breach of fiduciary duty claims must be heard by the Superior Court.
If your current will or trust documents contain arbitration provisions, they may create confusion and costly litigation. An attorney can review and update your documents.
What This Means If You Are a Beneficiary
If you are a beneficiary of a New Jersey estate and the executor or trustee is attempting to force you into arbitration, the Hekemian decision is directly relevant to your situation. You do not have to arbitrate. You have the right to demand a formal accounting in court, to challenge fiduciary misconduct, and to contest the administration of the estate through the Superior Court’s Chancery Division.
Common situations where beneficiaries now have clear legal footing include:
- Executors who have failed to provide accountings or distribute assets
- Trustees who have invested estate assets imprudently or personally benefited
- Co-executors who have excluded certain beneficiaries from information
- Situations where the surviving spouse’s elective share may be at risk
- Disputes about the validity of the will itself
If you are an attorney or financial advisor who has included arbitration provisions in client wills or revocable trust agreements, now is the time to review those documents. While inter vivos trust agreements may have different considerations, the Hekemian court’s analysis regarding mutual assent and the Surrogate’s Court Code’s jurisdictional mandate should inform how you advise clients going forward.
What This Means If You Are an Executor or Trustee
If you serve as an executor or trustee of a New Jersey estate, the Hekemian decision makes one thing clear: an arbitration clause in the will cannot be used to avoid judicial accountability. Your duties as a fiduciary include transparency, proper accounting, and acting in the best interests of all beneficiaries — duties that are enforced by the Superior Court, not by a private arbitrator of your choosing.
This ruling does not prevent executors and trustees from seeking informal resolution of disputes. Mediation remains a valuable and fully voluntary alternative to litigation. But the decision to mediate must be mutual — it cannot be unilaterally imposed through a will.
Frequently Asked Questions
Facing an Estate Dispute in New Jersey?
The Hekemian decision changes the landscape for beneficiaries and fiduciaries alike. Whether you need to enforce your rights as a beneficiary, defend a fiduciary accounting, or update an existing estate plan, the attorneys at Posternock Apell, PC are ready to help.