What if all the termination events in a testamentary trust occured before the testator dies?  In Whitehead v. Whitehead, a Mississippi appellate court suggested that we still have to read the documents constructing the testamentary scheme together to effectuate the intent of the testator.

What did John J. Whitehead, Jr.’s will and codicils show when read together?

Whitehead executed a will in February 1969 that provided for his wife and their four sons, which was Whitehead’s entire family at that time.  The will established a family trust to support Whitehead’s wife during her life and thereafter to support his sons, specifically named in the will as beneficiaries, until each reached age thirty, at which time distribution of a proportionate share would be paid out until the last of the trust corpus was distributed to the youngest child when he reached age thirty.

In December 1969, Whitehead executed a codicil that added as additional residuary trust beneficiaries “any child or children born of my marriage to Marie Whitehead.”  Marie was pregnant at the time and in May 1970, that child was born.

In 1988, Whitehead had a sixth son out of wedlock.  In 2007, Whitehead executed a second codicil acknowledging this child as his son, readopting his prior will, and providing that “[i]t is my intent that Jonathan Whitehead shall not inherit anything under my Last Will and Testament as I have made separate provision for him in that certain trust set up for his benefit.”

Whitehead’s wife predeceased him in 1998, and Whitehead himself died in 2009.  At the time of Whitehead’s death, all of his children – except Jonathan – had attained 30 years of age.   So, Jonathan filed suit claiming that the testamentary trust should be recognized as having never been established because Marie predeceased Whitehead and all of their children had reached age thirty well before Whitehead’s death.  Because – absent the trust – there was no provision for distribution of the residuary estate in Whitehead’s will, Jonathan claimed that the estate should pass by intestate succession.

The Mississippi Court of Appeals called this a “clever argument” but one without support.  The chancery court had found that a will and codicil must be read together with a paramount concern for respecting the intent of the testator.  When reading Whitehead’s will and codicils together, it was clear that his children with Marie should inherit from his estate and he expressly intended to exclude Jonathan from inheriting.  On appeal, Jonathan failed to present any authority to support his assertion that the trust is invalid simply because the conditions now-existing are such that it must immediately disburse its assets to those for whom it was established.

Perhaps a bigger issue for Jonathan was the unambiguous language of the termination clause: it was effective upon Whitehead’s “youngest living child attaining the age of thirty years.”  While all of Whitehead’s children with Marie had attained 30 years of age, Jonathan was born in 1988 . . . .