Avoid the DIY Estate Plan

We often handle problematic estates where a Will or Trust was drafted by an attorney lacking estate planning experience or, worse yet, a non-attorney who copied a form downloaded from the internet. These documents inevitably result in delays and Court costs. The recent Appeals Court decision in the case of Roth v. Newpol is yet another example of how paying for a carefully drafted plan now can avoid protracted litigation later. Truly, for your estate plan, an ounce of prevention is worth a pound of cure.

Siblings Evelyn Shakir and Phillip Shakir had each inherited an equal one-half share of their mother’s house. Phillip lived in the house while Evelyn lived elsewhere with her long-time companion, George Ellenbogen. At some point just prior to Evelyn’s death, Ellenbogen, an English professor, decided to draft a Will for Evelyn in which she left much of her estate to Ellenbogen. Ellenbogen simply copied the Will from a form provided to him by a colleague.

After making a number of specific gifts to Philip and a charity, Ellenbogen inserted the following paragraph:

B. Residuary Estate

I direct that any monies remaining in my estate be given to my partner, George Ellenbogen, and, upon his death, to the Virginia Center for the Creative Arts, identified as the Evelyn Shakir and George Ellenbogen (grant, scholarship, center, or some similar designation).

Upon Evelyn’s death, Ellenbogen offered the Will into probate and claimed that the Residuary Estate clause above meant that Ellenbogen was to receive Evelyn’s one-half interest in the house. Phillip’s Estate* claimed that the Residuary Clause did not dispose of Evelyn’s interest in the house. Rather, Phillip's Estate argued that because the Will was silent as to the house, Evelyn's one-half should be distributed to Phillip’s Estate under the law of intestate succession (the law applicable where one dies without a Will or where one’s Will does not make a complete distribution of one’s estate).

In an interesting analysis of the meaning of the word “monies,” the Appeals Court concluded that the plain meaning of the word and its interpretation through case law does not include interests in real property. The Court highlighted how easy it would have been for Ellenbogen to draft a residuary clause that simply included the words “real property” or “real estate” if that is what Evelyn had truly intended. The Court honed in on the fact that Ellenbogen, as an English professor, should understand the need for precision in drafting a Will (“If those who have studied the art of writing are in accord on any one point, it is on this: the surest way to arouse and hold the reader's attention is by being specific, definite, and concrete” citing Strunk & White, The Elements of Style 21 (4th ed. 2000)). Consequently, the Appeals Court upheld a decision giving the interest in the house to Phillip’s Estate.

While not directly expressed by the Appeals Court in its decision, it is clear there were many other problems with the Will aside from the issue about the house. It is also clear from his legal position that Ellenbogen meant for the Residuary Clause to give him Evelyn’s interest in the house when he drafted the Will. Regardless of how the case is ultimately resolved, the lesson for the rest of us is this: by trying to save a few dollars, Ellenbogen laid the foundation for over three and a half years of litigation with Evelyn’s family, the costs of which can only be imagined.


*Phillip died shortly after Evenlyn and was therefore represented in this case by the Personal Representative of his estate. Moreover, Phillip was Evelyn’s only surviving heir at law.