As a fan of the HBO series Game of Thrones1, I was cautiously optimistic about its prequel, House of the Dragon, which began airing in August 2022. I expected the usual compelling characters and intricate storytelling that George R.R. Martin is known for, but I did not expect – and was actually pleasantly surprised – that my estate litigation radar would signal red alert right from the first episode.

At this point in the blog, if you do not wish to be spoiled, click away now. Seriously, major spoilers ahead.

The story centres around the Targaryen family, whose members have held the Iron Throne of Westeros for centuries. The king, Viserys Targaryen, names his only child and daughter, Rhaenyra, as his heir. But – gasp – Westeros has never had a queen on the Iron Throne, and the king's decision sends shockwaves throughout the realm. Following the death of his wife, the king is obligated to remarry to secure his line of succession. He marries his daughter's best friend, Alicent Hightower, and has three children with Alicent, the eldest of which is a boy. For the rest of the king's life, despite being pressured by Alicent and his advisors, the king refuses to disinherit Rhaenyra and name his eldest son as heir. His death then leads to an interfamilial civil war for the Iron Throne known as the "Dance of the Dragons."

But how does this relate to estate litigation, I hear you ask. Allow me to add a Westerosi spin to Ontario law.

Assume that the king makes a will (when he is newlywed or has just had his first child), leaving his entire estate to his original wife, or in the event of her death, to his first child, Rhaenyra. Assume his original wife predeceases him, as above. After he marries Alicent and has three more children, assume he never makes a new will. Assume he dies on October 9, 2022 (as he did in episode 8, which aired on that date). Upon his death, he leaves behind a wife and three children who were not provided for under his will. Assume further that his estate is worth more than $350,000.

Under the recent amendments to the Succession Law Reform Act (SLRA) that came into effect on January 1, 2022, marriage does not revoke a will. Before that change to the law, if the king had died before January 1, 2022, his marriage to Alicent would invalidate his prior will. His estate would then be administered according to the intestacy rules under the SLRA. As a preliminary matter, Alicent must elect to either receive her entitlement as the king's spouse under the Family Law Act (FLA) or under the SLRA. If Alicent elects under the FLA, and if the king's net family property exceeds that of Alicent, she is entitled to one-half the difference in value between their two net family properties. If she elects under the SLRA, Alicent will receive the preferential share (the first $350,000) of the estate plus 1/3 of the residue. The remaining 2/3 of the estate will then be divided between Rhaenyra and her three siblings.

But, since the king dies in October 2022, his marriage to Alicent does not revoke his will, and Rhaenyra remains his sole beneficiary. In order to receive a share of the king's estate, Alicent and her children must successfully bring a dependant support claim under Part V of the SLRA. A "dependant" is a spouse, parent, child, or sibling of the deceased to whom the deceased was providing support or was under a legal obligation to provide support immediately before his death.

There is no question that Alicent and her children are dependants. The court would then have to determine the amount and duration, if any, of support that each of the dependants is to receive, according to a long list of factors under section 62(1) of the SLRA. These factors include: the dependants' current assets and means, the assets and means that they are likely to have in the future, and their capacity to contribute to their own support. For Alicent in particular, the court would look at factors such as the length of time she and the king cohabited and the effect of her earning capacity on the responsibilities she assumed during cohabitation. There is no exact formula for determining the amount of support, and cases vary widely. Sadly for Rhaenyra, it is likely that a court will order that her ex-best friend/stepmother and her siblings are entitled to a share of her father's estate such that she would not receive the whole estate, despite his expressed wishes in his will.

In applying Ontario law to this fictional set of facts, my takeaway is this: just because a deceased leaves behind a will does not mean that those not named in the will have no rights to a portion of the estate. This can lead to unfortunate family situations following the death of a loved one, though presumably without the large-scale violence that took place during the Dance of the Dragons. The king would have greatly benefited from sound legal advice with respect to his succession planning if he wanted to avoid any disputes about his estate.

Footnote

1 Except for that plain awful 8th season.

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