Key Points

• A recent Delaware Court of Chancery decision demonstrates how DIY wills and informal handwritten changes can result in costly probate litigation, delays, and unintended outcomes.
• The case highlights several common estate planning pitfalls, including invalid codicils, missing residuary clauses, ambiguous beneficiary language, and the ademption of specifically gifted assets.
• Regular estate plan reviews and guidance from experienced trusts and estates counsel can help ensure your wishes are enforceable and spare your loved ones unnecessary legal disputes.

A former Delaware state senator’s use of a form will sparked a court battle after his death that illustrates how do-it-yourself efforts can lead to costly and protracted litigation.

The decision in In re Estate of Robert Marchlewicz, aka Bobby Marshall from the Delaware Court of Chancery shows that the litigation could have been avoided with competent trusts and estates counsel.

Background

On June 16, 2026, Magistrate in Chancery Danielle Gibbs issued a final letter decision resolving a petition for instructions filed by the decedent’s executrix.

Robert Marchlewicz (known publicly as Bobby Marshall), a former Delaware state senator who died on March 30, 2024, left an estate plan consisting of a single preprinted form will executed in November 2020, with blank spaces filled in by hand, and later handwritten marginal additions dated 2021 and 2023.

The Register of Wills admitted the original will to probate but identified multiple defects so serious that it required the executrix to obtain a court order identifying the estate’s beneficiaries before administration could proceed. The resulting litigation took more than 18 months to resolve.

Why This Matters to You

The Marchlewicz decision illustrates that a form will is not a great (nor even a good) estate plan, and that informal changes to a will, no matter how well-intentioned, can render a testator’s wishes entirely unenforceable.

These risks are not limited to large or complex estates. Anyone with real property, business interests, financial accounts, or specific individuals they wish to benefit should understand the hazards of proceeding without qualified counsel.

Key Takeaways

Handwritten Amendments Require Proper Witnesses
The decedent made handwritten additions to his will in 2021 and 2023. The Court found both invalid. The 2023 codicil lacked the two witness signatures required by Delaware law, and there was no evidence that the 2021 addition was witnessed at all. Whatever the decedent intended by those changes - including an apparent attempt to redirect checking accounts and certificates of deposit - his wishes could not be honored.

Your risk: If you have made handwritten notes, annotations, or additions to your will without proper execution formalities - including your signature and the signatures of two witnesses – your changes may not be enforceable under Delaware law.

Every Will Needs a Residuary Clause
The will contained no residuary clause - the provision that disposes of any remaining estate assets not covered by specific bequests. The Court confirmed that the residue, if any, passes under Delaware’s intestacy statute to the decedent’s next of kin, who may not be the individuals the testator intended to benefit.

Your risk: Without a residuary clause, any asset not specifically devised - or any bequest that fails due to ademption, lapse, or invalidity - passes by intestacy rather than according to your wishes.

Ambiguous Contingency Language Creates Costly Uncertainty
The will devised real property to Petitioner Scheurer, then stated: “If Amena Lewis shall predecease me, I give and devise my real estate to Ava and Arielle Lewis.” The Register found it unclear whether Amena Lewis was even a beneficiary. The Court noted that this contingency language would normally reference the primary devisee (Scheurer), not a third party (Lewis), suggesting the decedent may have confused the names or misunderstood how to draft the provision.

Your risk: Imprecise survivorship or contingency language can generate litigation - even when the ambiguity does not ultimately alter the distribution, it delays administration and increases costs for your loved ones.

Selling Specifically Devised Assets Defeats the Bequest
The will devised a 2020 Ford Edge and a 2019 Chevrolet Corvette to named beneficiaries (the decedent’s cousins). Both vehicles were sold before the decedent’s death. Under the doctrine of ademption, the Court held that those gifts were extinguished and the named beneficiaries took nothing under the will with respect to those bequests.

Your risk: If you sell, trade, or dispose of a specific asset named in your will without updating the document, the intended beneficiary receives nothing - not the replacement asset, not the sale proceeds, and no substitute gift unless the will expressly provides for one.

Fiduciaries Must Be Informed in Advance
The executrix, Henriestine Scheurer, was unaware of her nomination until she received a copy of the will in 2023 - before the testator’s passing but without any meaningful opportunity to discuss its terms with him. Had she reviewed the will with her own attorney at that time, she might have identified the defects and encouraged the testator to correct them. Instead, she inherited the burden of navigating a defective will through probate and the Court of Chancery.

Your risk: Naming an executor without their knowledge can result in delay and confusion. Worse, an uninformed fiduciary may be unprepared for the administrative and legal challenges of the role - particularly if the estate plan contains defects they could have helped identify in advance.

Seven Tips for Delaware Clients and Fiduciaries

1. Review your existing estate plan.
   If your will is a form document, a holographic will or has not been reviewed by a trusts and estates attorney, schedule a consultation to assess whether it accomplishes your objectives.
2. Never amend a will informally.
   If your circumstances or wishes have changed, work with counsel to execute a new will or formal codicil with proper witnesses and notarization.
3. Confirm your will includes a residuary clause.
   This is the single most important safety net in any estate plan.
4. Update your plan after any major asset change.
   Selling property, vehicles, or business interests named in your will creates ademption risk that must be addressed promptly.
5. Discuss fiduciary appointments in advance.
   Ensure your nominated executor knows about the appointment, understands the responsibilities involved, and that a successor is named.
6. Coordinate probate and nonprobate transfers.
   Review beneficiary designations, account titling, LLC operating agreements, and tangible personal property memoranda together with your will to ensure consistency.
7. Schedule periodic reviews.
   Review your estate plan at least every three to five years, and immediately after any significant life event (marriage, divorce, death of a beneficiary, retirement, or major acquisition or sale).

The Marchlewicz decision is a sobering reminder that the formalities of estate planning exist to protect you and the people you care about. The cost of engaging experienced Delaware trusts and estates counsel to prepare, execute, or review your estate plan is a fraction of the cost that your loved ones will incur if a defective plan must be resolved through litigation.

For more information, please contact Beth B. Miller at 302.622.4219 or bbmiller@foxrothschild.com or another member of the firm’s Taxation & Wealth Planning Department.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.