A recent decision of the Ontario Superior Court of Justice, Allmendinger v. Brown Estate, 2026 ONSC 4710, offers a useful illustration of how the court approaches a dependant’s support claim by a common-law spouse who was not provided for in the deceased’s will.
Background
Ms. Brown died in November 2023, leaving her entire estate to her adult daughter. She had cohabited with her partner, Mr. Allmendinger for ten years, but her will, unchanged since 2006, made no provision for him. The estate applied for possession of Ms. Brown’s condominium, and Mr. Allmendinger, who remained in the unit, brought a competing application for dependant’s support under the Succession Law Reform Act. Although the two applications were not formally joined, they were heard together.
The Mutual Wills Argument
The estate first argued that the 2006 mirror wills of Ms. Brown and her late first husband were mutual wills, which would defeat the support claim. The court rejected this argument. Applying Gefen Estate v. Gefen, 2022 ONCA 174, Justice Stewart held that a mutual wills agreement requires a binding contract not to revoke, proven by clear and cogent evidence. There was nothing in the wills themselves, and neither the drafting lawyer nor the investment advisor gave evidence of any intention to create mutual wills. The estate bore the onus and did not meet it.
Dependant Status and the Section 62 Factors
The estate conceded that the parties were common-law spouses, and the court found that Mr. Allmendinger was a dependant. In assessing the section 62 factors, however, the court was critical of significant evidentiary gaps in his materials. His assertions about financial contributions, investment management, and elaborate retirement plans were largely unsupported and, at times, internally inconsistent. He refused questions on cross-examination and answered none of his undertakings, from which the court drew an adverse inference. The court also placed little weight on several near-identical affidavits sworn by his friends.
Balancing the Competing Interests
Mr. Allmendinger was the only dependant before the court, and no other dependant claims were advanced. The competing interest was that of Ms. Brown’s adult daughter, Lillian Jones, the sole beneficiary under the will, whose claim was for the value of the entire estate. Following the framework in Quinn v. Carrigan, the court balanced the dependant’s priority claim against Ms. Jones’s interest, and confirmed that the remainder of the estate passes to Ms. Jones once the estate’s support obligations are met.
The Award
The court declined to award the roughly $4,873 per month Mr. Allmendinger sought, finding no evidentiary basis for that figure. Instead, it grounded the award in Ms. Brown’s actual historical outlays of approximately $44,279 per year, allocating amounts for shelter, transportation, and living expenses. The result was support of $3,300 per month, a lump sum of $34,650 for past living expenses plus pre-judgment interest, and possession of the condominium to the estate, which Mr. Allmendinger was ordered to vacate.
Takeaway
The decision is a reminder that dependant status opens the door to relief, but the quantum of support remains firmly tethered to the evidence. A claimant who cannot particularize need, contribution, or accustomed standard of living may find the court anchoring any award to the deceased’s proven spending rather than to the claimant’s aspirations. Careful, well-documented proof continues to matter.
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Li-Mei Mayer