In Hollingsworth v. Swales, Richard C. Harris (R.C.) executed a will in 2017 and a codicil in 2020, which contained an arbitration provision. No. 10-23-00018-CV, 2025 Tex. App. LEXIS 871 (Tex. App.—Waco February 13, 2025, original proceeding). After R.C.’s death in 2021, his will was admitted to probate. R.C.’s children (the Trustees) filed a suit seeking a declaration construing the will. R.C.’s grandchildren filed a cross-petition seeking a declaration that R.C. only partially exercised his power of appointment over certain trust assets. The Trustees moved to compel arbitration based on the arbitration provision in the will, but the trial court denied the motion.
The primary legal issue addressed was whether an arbitration provision included in a will can be enforced to require disputes related to the will to be submitted to binding arbitration. The court examined whether beneficiaries who accept benefits under a will are deemed to have assented to the arbitration provision, even though they did not sign the will. The court stated:
The Texas Supreme Court has determined that although an agreement under the TAA need not meet all the formal requirements of a contract, it must be supported by mutual assent. Thus, we first address whether the Will here was supported by the mutual assent required to render it an agreement and the arbitration provision valid. Usually, a party manifests its assent by signing an agreement. However, a Will is a unilateral instrument, and, as such, it becomes enforceable when the promisee, in this case a beneficiary, accepts by actual performance. The requirement of mutuality is met by performance. See id. Thus, the instrument does not become binding until the promisee has performed, or at least partly performed, under the agreement.
It is undisputed that the Grandchildren have already taken benefits under the Will. Thus, they have performed under the Will, and mutuality of the arbitration agreement under the Will has been met. Consequently, the arbitration agreement is valid
Id.
The court also held that the disputes regarding the interpretation of the will, including actions brought by or against trustees, fall within the scope of the arbitration provision:
The Grandchildren claimed in a cross-petition for declaratory judgment that pursuant to the Will, R.C. only partially exercised his general power of appointment over the Survivor’s Trust’s assets and thus, the Grandchildren should receive 1/3 of the trust’s assets. The Children generally denied this claim. The Grandchildren agreed in their response to the motion to compel arbitration that their suit requires the court to construe the Will. As stated previously, the arbitration provision in the Will provides: “…arbitration as provided herein shall be the sole and exclusive remedy for the resolution of any dispute of any kind involving this Will (including any trust established hereunder), including any kind of action brought against the Executor or Trustee for any matter…” It is clear from this provision that the Grandchildren’s suit to construe the Will brought against the Children as trustees comprises “a dispute of any kind involving this Will” and that this suit is an action brought against a “Trustee for any matter.” Thus, the suit is within the scope of the arbitration agreement.
Id.
The court addressed the issue of whether the existence of an arbitration provision in a will ousts the probate court of its jurisdiction over probate matters, particularly in light of statutory requirements that probate proceedings be heard in a court exercising original probate jurisdiction. The court clarified that arbitration does not dismiss a probate case but stays the proceeding, and the probate court retains authority to confirm arbitration awards and enter corresponding judgments. The court held:
The Grandchildren also contend the arbitration agreement cannot be enforced because the probate court has exclusive jurisdiction of this probate dispute. They rely on Estates Code section 32.001 which provides that “[a]ll probate proceedings must be filed and heard in a court exercising original probate jurisdiction.” We disagree with the Grandchildren. The Texas Arbitration Act specifically excludes certain agreements from arbitration… Probate matters are not included in this list. If the Legislature had wanted to exclude probate matters from arbitration, it could have included it in this section. It did not.
The Grandchildren argue that arbitration will oust the probate court of its ability to hear the probate proceeding as they contend the Estates Code requires. However, an arbitration agreement does not dismiss a case filed in the trial court; the proceeding is only stayed. Further, the trial court decides whether to confirm the arbitration award, enters an order, and enters a corresponding judgment conforming to the order. Thus, the trial court discharges its duty in hearing the case. Further, the determination of whether R.C. fully or only partially executed his power of appointment appears to be only a part of the entire probate proceeding. Thus, after the arbitration, the probate proceeding could foreseeably continue in the probate court regarding issues that are not disputed or subject to the arbitration provision in the Will during the normal course of probate.
Id. The court granted the petition for writ of mandamus, compelling arbitration.
