In Re Morgan Stanley & Co., Inc.

delivered the opinion of the Court, in which Chief Justice

In this original mandamus proceeding, the relator seeks to compel arbitration in accordance with its agreement in the underlying case. The other putative party to the agreement resists arbitration on the ground that she lacked the mental capacity to assent to the contract. The question here is whether the court or the arbitrator should decide this issue of capacity. The trial court concluded that it was the proper forum. We agree and, accordingly, deny the petition for writ of mandamus.

I

Helen Taylor’s estate was worth several million dollars in 1999, the year in which she was diagnosed with dementia. That year, she also transferred several of her securities accounts to Morgan Stanley. Each account agreement with Morgan Stanley included an arbitration clause.1 Over the next few years, Taylor also signed a durable power of attorney in favor of her granddaughter, Kathryn Albers, and a trust agreement, naming Albers as trustee. During this period, Albers made gifts to her mother, her sister, and herself from Taylor’s estate.

In 2004, a Dallas probate court appointed Nathan Griffin as guardian of Taylor’s estate. By this time, the value of her estate had been significantly reduced. In May 2005, the guardian sued Taylor’s granddaughters and others for violation of the Texas Uniform Fraudulent Transfer Act, civil theft, conversion, and for the imposition of a constructive trust. About a year later, Taylor’s guardian added Morgan Stanley as a defendant, asserting breach of fiduciary duty, negligence and *184malpractice, unsuitability of investments, violations of the Texas Security Act, and breach of contract. Morgan Stanley moved to compel arbitration of the dispute. The guardian resisted the motion, arguing that Taylor lacked the mental capacity to contract when she signed the account agreements with arbitration clauses and that it was for the court, not an arbitrator, to decide this issue of capacity. Taylor’s guardian also subsequently nonsuited the breach of contract claim.2 The trial court refused to compel arbitration.

Morgan Stanley petitioned the court of appeals for mandamus relief, but the court also declined to order the matter to arbitration. In re Morgan Stanley & Co., 2007 WL 2035128, 2007 Tex.App. LEXIS 5582 (Tex.App.-Dallas July 17, 2007, orig. proceeding) (mem. op.). Morgan Stanley then petitioned this Court. We set the case for argument to consider whether a court or an arbitrator should determine the issue of mental capacity to contract.

II

The Federal Arbitration Act (“FAA”) generally governs arbitration provisions in contracts involving interstate commerce. See 9 U.S.C. § 2; see also In re L & L Kempwood Assocs., L.P., 9 S.W.3d 125, 127 (Tex.1999). Where the FAA ostensibly controls, as it does here, an agreement to arbitrate is valid except on grounds as exist at law or in equity to revoke the contract. 9 U.S.C. § 2. Section 2 of the FAA provides that courts shall compel arbitration on issues subject to an arbitration agreement. Id. Section 4 of the FAA provides that a court may consider only issues relating to the making and *185performance of the agreement to arbitrate. 9 U.S.C. § 4. Thus, once a party seeking to compel arbitration has established that there is a valid agreement to arbitrate and that the plaintiffs claims are within the agreement’s scope, the trial court must compel arbitration. Id.; In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex.1999) (per curiam).

Before 1967, however, courts often reasoned that any defense that would render the entire contract unenforceable or void was for the court to decide because if the underlying contract was invalid so too was the agreement to arbitrate. See generally Katherine V.W. Stone, Arbitration Law at 242 (2003). The United States Supreme Court rejected that reasoning in Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395, 404, 87 S.Ct. 1801,18 L.Ed.2d 1270 (1967).

The issue in Prima Paint was whether the court or an arbitrator should decide a claim of fraud in the inducement of the entire contract. Id. at 402, 87 S.Ct. 1801. Relying on section 4 of the FAA, the Supreme Court held that a claim of fraud in the inducement of a contract generally, as opposed to the arbitration clause specifically, was for the arbitrator, not the court, to decide. Id. at 404, 87 S.Ct. 1801 (“a federal court may consider only issues relating to the making and performance of the agreement to arbitrate”). Prima Paint thereby established the “separability” doctrine, explaining that an arbitration provision was separable from the rest of a contract under section 4 and that the issue of the contract’s validity was to be determined by the arbitrator unless the challenge was to the agreement to arbitrate itself. Id. at 402-04, 87 S.Ct. 1801.

Since Prima Paint, we have dutifully followed the separability doctrine that presumptively favors arbitration. See Southland Corp. v. Keating, 465 U.S. 1, 15-16, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) (holding that federal arbitration law created by the FAA applies in state courts). We have held that defenses attacking the validity of a contract as a whole, and not specifically aimed at the agreement to arbitrate, are for the arbitrator, not the court. See In re RLS Legal Solutions, LLC, 221 S.W.3d 629, 631-32 (Tex.2007). But we have also recognized that the presumption favoring arbitration arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex.2003). We have not, however, previously considered whether the defense of mental incapacity is an attack on the validity of the contract as a whole and therefore a matter for the arbitrator, as Morgan Stanley argues, or a gateway matter concerning the existence of an agreement that must be proven to the satisfaction of the court, as Taylor’s guardian argues.

There is some disagreement about what Prima Paint requires in this situation. The Fifth Circuit in Primerica Life Insurance Co. v. Brown, 304 F.3d 469, 472 (5th Cir.2002), has concluded that the arbitrator should decide a defense of mental incapacity because it is not a specific challenge to the arbitration clause but rather goes to the entire agreement. The Tenth Circuit reached the opposite result in Spahr v. Secco, 330 F.3d 1266 (10th Cir.2003), concluding that the “mental incapacity defense naturally goes to both the entire contract and the specific agreement to arbitrate in the contract.” Id. at 1273. Thus, under the Tenth Circuit’s view, the mental incapacity defense places the “making” of the arbitration agreement at issue under Section 4 of the FAA, giving the court authority to determine whether the parties have actually agreed to arbitration. Id. The Supreme Court has not yet settled this *186conflict but rather expressly reserved the question in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 n. 1, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).

Buckeye concerned the defense of illegality. The plaintiffs there claimed that the defendant’s check cashing agreement “violated various Florida lending and consumer-protection laws,” and was therefore void and illegal ab initio. Id. at 443, 126 S.Ct. 1204. Applying Florida law, the Florida Supreme Court agreed that the contract was illegal and void, and refused to compel arbitration. Id. at 443, 446, 126 S.Ct. 1204. Applying Prima Paint’s doctrine of separability, the U.S. Supreme Court reversed the Florida Supreme Court. Id. at 449,126 S.Ct. 1204.

As it had done in Prima Paint, the Supreme Court rejected the notion that the enforceability of the arbitration agreement depended on the distinction between void and voidable contracts. Id. at 448, 126 S.Ct. 1204. Instead, the Court reiterated three controlling principles of federal arbitration law. First, that an arbitration provision is severable from the remainder of the contract. Id. at 445, 126 S.Ct. 1204. Second, that “unless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.” Id. at 445-46, 126 S.Ct. 1204. Third, that federal arbitration law applies in state and federal courts. Id. at 446, 126 S.Ct. 1204. The Court concluded that because the plaintiffs challenged “the [ajgreement, but not specifically its arbitration provisions,” the rule of separability applied, and the arbitration provisions were enforceable “apart from the remainder of the contract.” Id. at 446, 126 S.Ct. 1204.

Most importantly to our present case, however, was the distinction the Supreme Court drew between issues of validity and issues of contract formation. The Court noted that an illegality defense, raising the issue of the contract’s validity, was different from a formation defense, raising the issue of whether a contract was ever concluded:

The issue of the contract’s validity is different from the issue whether any agreement between the alleged obligor and obligee was ever concluded. Our opinion today addresses only the former, and does not speak to ... whether the alleged obligor ever signed the contract, Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (C.A.11, 1992), whether the signor lacked authority to commit the alleged principal, Sandvik AB v. Advent Int’l Corp., 220 F.3d 99 (C.A.3, 2000); Sphere Drake Ins. Ltd. v. All American Ins. Co., 256 F.3d 587 (C.A.7, 2001), and whether the signor lacked the mental capacity to assent, Spahr v. Secco, 330 F.3d 1266 (C.A.10, 2003).

Id. at 444 n. 1, 126 S.Ct. 1204. The Court thus excluded from its analysis several contract-formation-defense issues, including the defense in this case, that the signor lacked the mental capacity to assent.

Although the Supreme Court in Buckeye grouped illegality with fraudulent inducement for purposes of Prima Paint’s separability doctrine and expressly excluded the issue of mental capacity along with other contract-formation issues from that analysis, the Dissent here concludes that mental capacity is really more like fraudulent inducement, suggesting that the Supreme Court was wrong to include it with the other contract-formation issues. Compare 293 S.W.3d at 193 (Hecht, J., dissenting) (“seems to me, lack of capacity is closer to fraudulent inducement”), with Buckeye, 546 U.S. at 444, n. 1, 126 S.Ct. 1204. The Dissent reasons that incapacity is different from the other contract-formation issues distinguished in Buckeye because a contract signed by an incapacitated person exists subject to ratification or *187avoidance by the incapacitated person. 293 S.W.3d at 193. But the Dissent’s analysis begs the question of whether a contract exists. As the Fifth Circuit has observed, “where the ‘very existence of a contract’ containing the relevant arbitration agreement is called into question, the federal courts have authority and responsibility to decide the matter.” Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th Cir.2004). And, when the issue of mental capacity is raised, the “very existence of a contract” is at issue. Id. Because the Supreme Court has grouped mental capacity with the other issues of contract formation, we do so as well.

III

Several courts have read Buckeye to add a third discrete category to the Prima Paint analysis, which includes: (1) a challenge to the validity of the contract as a whole, (2) a challenge to the validity of the arbitration provision itself, and (3) a challenge to whether any agreement was ever concluded. Prima Paint reserves the first category for the arbitrator and the second category for the court. Buckeye, 546 U.S. at 446, 126 S.Ct. 1204. Since Buckeye, the federal courts,3 a state supreme court,4 and other state appellate courts5 have generally concluded that the third category involves a threshold inquiry for the court.

*188Even before Buckeye’s comment about contract formation, virtually every court refused to compel arbitration absent the existence of an agreement to arbitrate.6

*189The Fifth Circuit’s decision in Primeri-ca, that the defense of mental incapacity is" an issue for the arbitrator, not the court, because it is an attack on the whole contract, stands in stark contrast to these authorities. Moreover, Pyimerica has been roundly criticized,7 and we aware of no other court that has followed its reasoning, including the Fifth Circuit. Several months after Primeyica, the Fifth Circuit, in fact, reached a decidedly different result in another case involving the issue of a contract-formation defense to an arbitration clause.

In Will-Drill Resources, Inc. v. Samson Resources, Co., 352 F.3d 211 (5th Cir. 2003), Samson resisted arbitration on the grounds that all parties had not signed the agreement containing the arbitration clause. The case involved several sellers of mineral leases. Id. at 213. Some of the sellers had agreed to arbitrate any dispute, and some had never signed the underlying contract. Id. at 215. The Fifth Circuit concluded that whether the sellers had signed the agreement went directly to the “making” of the agreement and the party’s consent to arbitrate. Noting that arbitration could not be forced upon a party “absent its consent,” the court wrote:

[W]here the very existence of an agreement is challenged, ordering arbitration could result in an arbitrator deciding that no agreement was ever formed. Such an outcome would be a statement that the arbitrator never had any authority to decide the issue. A presumption that a signed document represents an agreement could lead to this untenable result. We therefore conclude that where a party attacks the very existence of an agreement, as opposed to its continued validity or enforcement, the courts must first1 resolve that dispute.

352 F.3d at 219 (internal citation omitted). Similarly, we have concluded that whether an arbitration agreement binds a nonsignatory is a gateway matter to be determined by the court, rather than the arbitrator, unless the parties clearly and unmistakably provide otherwise. In re Weekley Homes, L.P., 180 S.W.3d 127, 130 (Tex.2005); see also In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009) (when “arbitration agreement is silent about who is to determine whether particular persons are bound by the agreement, courts, rather than the arbitrator, should determine the issue”).

When deciding federal questions of first impression, we anticipate how the U.S. Supreme Court would decide the issue. City of Lancaster v. Chambers, 883 S.W.2d 650, 658-59 (Tex.1994). This analysis often draws on the precedents of other federal courts, or state courts, to determine the appropriate answer. Given the overwhelming weight of authority, it is apparent to us that the formation defenses identified in Buckeye are matters that go to the very existence of an agreement to arbitrate and, as such, are matters for the court, not the arbitrator. Although the Fifth Circuit reached a different conclusion in Primerica, we are not obligated to follow that decision. See Penrod Dyilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex.1993) (“While Texas courts may certainly draw upon the precedents of the Fifth Circuit, or any other federal or state court, in determining the appropriate fed*190eral rale of decision, they are obligated to follow only higher Texas courts and the United States Supreme Court.”). Instead, we agree that Primerica misapplies Prima Paint’s separability doctrine:

Despite casual assumptions to the contrary, Prima Paint does not merely preserve for the courts challenges that are “restricted” or “limited” to “just” the arbitration clause alone — this would be senseless; it preserves for the courts any claim at all that necessarily calls an agreement to arbitrate into question. To send a dispute to arbitration where “not only” the arbitration clause itself, but “also,” in addition, the “entire” agreement is subject to challenge, is to lose sight of the only important question — which is the existence of a legally enforceable assent to submit to arbitration. Someone lacking the requisite mental capacity to contract cannot, I dare say, assent to arbitrate anything at all.

Alan Scott Rau, Everything You Really Need to Know About “Separability” in Seventeen Simple Propositions, 14 Am. Rev. Int’l ARB. 1,17 (2003). We agree that Prima Paint reserves to the court issues like the one here, that the signor lacked the mental capacity to assent. Accordingly, the trial court did not abuse its discretion in declining to yield the question to the arbitrator.

Relator’s petition for writ of mandamus is denied.

Justice WILLETT filed a concurring opinion.