Another Royal Biffs It Foreshadowing Civil War in the Realm
SPOILER ALERT! Do not read this if you haven’t seen Episode 8 of House of the Dragon, “The Lord of the Tides.” Also, this is NOT legal advice and does not constitute an attorney-client relationship. It’s just for fun, folks.
You’d think as King of the Andals and Protector of the Realm, King Viserys Targaryen would have had his Small Counsel commit his estate plan to writing—especially since he was going against the “norm” of primogeniture in naming his first-born daughter as the heir to the throne. And especially since that departure would cause immense discontent. But no…Viserys apparently didn’t think he needed a written estate plan that is valid and enforceable in all the Seven Kingdoms.
Instead, in the last hours of his leprotic life, skin literally falling off his face, he got totally blitzed on milk of the poppy and spouted some gobbledygook to his wife. But of course, there’d be no “House of the Dragon” without some dumb mistake like this. I saw it coming in Episode One.
If you were on the edge of your couch watching Viserys Targarean’s deathbed gasps like me, you might be thinking, “Wait, what did he just say?” and rewind 15 seconds to listen again to his addled mutterings—who does he think he’s talking to? Alicent? Rhaenyra? Rewind again, “Wait, which Aegon is he talking about?” I’m so confused.
— vanessa ???? (@v_dizzel) October 10, 2022
Viserys had been consistently insistent that his first-born daughter, Rhaenyra, would be queen from the time she was 13, knowing that transgressing custom in Westeros would probably cause a civil war—and why? Because he was certain Rhaenyra would bear the “Prince Who Was Promised.” Never mind that we beyond the 4th wall know that prince is 200 years in the future.
The question I’ve been stewing on all week is…would this deathbed confession be enforceable? My reaction for the few hours, was “hell no!” It seems so obvious to the viewer that he was not of sound mind to make this last-minute switch. But later my 21st century lawyer brain kicked in.
Viserys had testamentary capacity at dinner that very night, just hours before. Nothing had changed in terms of his wishes to have Rhaenyra inherit the Iron Throne in the viewer’s eye—unless he duped us too! We can’t be too sure with these Targaryns, can we? Wracked by pain, and seeing his silver-haired children and Rhaenrya’s brunette children at each other’s throats, maybe he finally snapped? Vaemond is kind of right, obvi.
— kasey (@BasketKasey) October 10, 2022
Certainly, Alicent is going to claim Viserys changed his testamentary intent at the last moment of his life and wanted her son, Aegon to sit the throne. Never mind that Viserys was unwavering in his decision to name Rhaenyra even in the face of immense pressure for 20 years. She’ll claim Viserys had a change of heart in the face of his imminent death—which is not unheard of.
Let’s say Alicent presses her ill-mannered (cough..rapist) son’s claim to the throne. I mean really, couldn’t just one GOT queen admit her son is a psychopath who will cause mayhem in the realm? The writers had to give Alicent some really good reason to believe she should press Aegon’s claim. Naturally, they made Viserys’ death scene very confusing, even to the viewer.
What, short of war, could Rhaenyra claim that would undermine Alicent’s foreshadowed lunge for the throne?
There are six legal theories under which Rhaenyra could challenge Alicent’s assertion that Aegon is heir to the throne. They are: 1. lack of testamentary capacity, 2. undue influence, 3. mistake, 4. duress, 5. fraud, and 6. revocation. To cut down on the number of possible claims for this piece, I’ll eliminate duress, fraud, and revocation and stick with just the first three, which are the most promising.
Now to make this thought experiment work, we first have to pretend that an oral (nuncupative) Will would be valid. In Colorado, oral Wills are not valid. But let’s just say for fun they are. Now, let’s take the first claim, “Lack of Testamentary Capacity.”
Lack of Testamentary Capacity
Did Viserys have “testamentary capacity” to change his original plan from Rhaenyra to Aegon as heir to the throne at the time of his death?
Testamentary capacity is the minimum mental (not physical) capacity a person needs to have in order to sign a Will or effectively dispose of their estate. In most of the United States, we follow a simple test for testamentary capacity and often lawyers can make this determination. But when someone’s capacity is questionable, lawyers will often bring in professionals to help determine whether a person has mental capacity to sign a Will (or an, as in this case, an oral Will).
In Colorado, the test is called the “Cunningham Test” from the name of the originating case where these factors were adopted. The factors are:
- Does s/he understand the nature of their act;
- Does s/he know the extent of their property;
- Does s/he understand the proposed testamentary disposition;
- Does s/he know the natural objects of their bounty; and
- Does the (new) Will represent their wishes?
Depending on your viewpoint, it’s unknown to the viewer whether Viserys actually knows what he’s doing (the nature of his act). We’ve seen Viserys make some verbal blunders in the past—as in calling Alicent by his first wife’s name, “Aemma” at Laena Velaryon’s funeral. But the very night he died, at the family dinner, Viserys knew everyone who was there and would have sailed through a professional evaluation of these five factors.
However, he clearly was in pain and drank milk of the poppy shortly thereafter. Would he have still had mental capacity once that kicked in to change his mind? Well, maybe, maybe not. In estate planning, just because someone is on pain meds doesn’t mean we don’t let them sign a Will—although it is highly discouraged and if someone is clearly inebriated, I wouldn’t allow them to sign anything, much less a Will. The question would be whether, in that current moment, they could pass the Cunningham Test. Similarly, when someone has memory issues, we don’t automatically cut off someone’s ability to make their own decisions about their estates. Capacity can be “fleeting.” People with memory issues can often have capacity in the morning, but by nighttime have lost that capacity due to a phenomenon called “sunsetting.”
A judge in this case would hear testimony that Viserys had remarkable capacity in full view of family, friends, and the staff earlier in the night, and would probably lean toward finding Viserys had capacity later that night absent testimony otherwise. The only person who saw that he didn’t have capacity is Alicent and she would never admit he didn’t.
For argument’s sake, let’s say Rhaenyra’s claim to the throne fails on this claim. The next claim would be that Alicent exerted undue influence.
Did Alicent exert undue influence over her husband to elevate her son Aegon as heir to the throne? The key to this question is whether Alicent’s influence is mere influence or “undue” influence. Influence alone is not sufficient to undo a dispositive instrument. It’s influence that deprives another of their free choice. In Colorado, we have a rebuttable presumption of undue influence if the disposition is to the benefit of a party (Alicent) who is in a “confidential relationship” with the testator (Viserys).
A “confidential relationship exists whenever one person gains the trust and confidence of another person by acting or pretending to act for the benefit of or in the interest of the other and as result, is put in a position to exercise influence and control over the other.” Alicent seems to fit this description nicely—though it was her father who originally put her up to it. One can almost see her discomfort at being put in this position early on but by Episode 8, she owns it like the Queen she is. If a “confidential relationship” is proven, a court would presume there was undue influence, but the alleged influencer can rebut that with contrary evidence. There’s ample evidence that Alicent has been acting for the benefit of Viserys and is in a position to exercise influence and control—she was sitting on the throne in his stead, after all. Alicent would then have the burden to prove she did not influence her husband, which is going to be rather more difficult.
Let’s say a court finds there is no “confidential relationship” between Alicent and Viserys. Even without such a relationship, undue influence can be proven when four factors are present:
- A person is unquestionably susceptible to undue influence; (arguable since Viserys had resisted influence for 20 years already; on the other hand, he’d all but yielded the throne to Alicent, so maybe he was susceptible).
- The opportunity in a third person to exercise undue influence and to effect a wrongful purpose; (Alicent certainly had ample opportunity and the wrongful purpose was to strike down a long-standing appointment to her own child’s, and her, benefit).
- A disposition to influence unduly for the purpose of procuring an improper benefit (sweet little Alicent handed a cup of “morning after tea” to a girl who’d been raped by her son, so yeah, she had that disposition) and;
- A result appearing to be the effect of the supposed undue influence. (Check).
This theory is plausible—either under the confidential relationship rule or the straight undue influence rule. Either one could win Rhaenyra the Throne back—in Colorado anyway. Then what about the fact that Alicent simply misunderstood Viserys—might that fall under the category of mistake?
You might think that Viserys mistaking his wife for his daughter is enough of a mistake to set aside this oral Will. However, the thing about “mistake” in the area of Wills is that it has to be a ginormous mistake. The person who made a mistaken Will has to have thought they were signing something else entirely. Were this a written Will, Viserys would have had to have signed it thinking it was not a Will. (Remember we’re pretending oral Wills are valid, which they are not). Since we don’t know what Viscerys was thinking and Alicent will be the only eyewitness to his state of mind—and as much as we once liked her–she’s going to lie like a rug—this claim probably would fail.
In the end, no one but Alicent saw Viserys get sloppy on poppy. We, the audience, knows he’s whacked out and dying and in pain but who’s going to testify he was hammered? What we do have is a claimant with the secret “key” to the realm in that Alicent now knows about the prophecy—which only Rhaenyra had known previously. Won’t Rhaenyra’s mind be blown when she hears Alicent talk about the Prince Who Was Promised and assert it is Aegon?
— ale (@AleGarc60774190) October 10, 2022
If I were litigating this case, I’d have to assert all three of these things—but I’d only need to win on one of them. And the most promising looks like “undue influence” at the moment.
What does this mean to you, fellow Coloradans? Three things…
- An estate plan cannot fix what is already broken. Meaning if a family is already fractured, an elder’s estate plan can’t heal it—only good psychological and spiritual work can do that. None of these characters are interested in doing the kind of work that would bring that family together—they’d rather fight it out dragon v. dragon. It makes for good TV, but not good family well-being.
- A well-designed estate plan, however, can avoid all-out war. Parents rarely recognize their children’s resentments and rivalries—but every estate planner knows nothing brings those out like an elder’s death. When parents and grandparents pass away, the pressures that kept emotional and psychological material repressed is released like an InstantPot and all kinds of negative emotions come out. Having a written plan in place long before an event occurs is essential to avoiding confusion, heartache, and excessively bad feelings. Put it in writing and keep your plan up-to-date with your current wishes. Don’t set it and forget it for 20 years like Viserys did and expect it to work.
- A written estate plan is not the only thing that should be done to assure your legacy is a good one. This, my friend, is the deeper work of life itself. Whatever you have done or not done with your life will linger like a fragrance in the air long past your demise. You may not care about this, and if you don’t, nothing I say is going to make you care. For those of us who do care about the people who come after us, living a good life, and dying a good death means leaving a loving and empowering path toward the future. It’s always wise to consider what you have done with your life and what is still left to do. Leave a pleasant scent when you go–not a stinky one.
The moral to this story is—it’s easier (and cheaper) to get an estate plan done than to rely on dragons to settle your affairs.