Ontario Superior Court Orders Dependant Support for the Common-Law Partner Omitted in the Will

In a recent estate dispute case, the Ontario Superior Court of Justice affirmed the dependant support claim of the common-law spouse of the deceased, even though they were not mentioned in the will. In Allmendinger v. The Estate of Heather Ruth Brown, 2026 ONSC 4710, the Ontario Superior Court of Justice addressed the balance between testamentary freedom and statutory dependant support obligations under Part V of the Succession Law Reform Act (SLRA). 

The decision provides crucial guidance for common-law spouses omitted from a deceased partner’s will, as well as for estate trustees and beneficiaries defending against any inflated claims. Reversing the status quo where the omitted partner faced eviction without any financial support from the estate, the court confirmed that financial dependency created during long-term cohabitation creates a binding priority claim overriding a testator’s will.

Background of the Case

Ms. Heather Ruth Brown passed away in November 2023, leaving an estate valued between $1.4 million and $1.8 million, primarily consisting of a condominium in Etobicoke. Her 2006 will left her entire estate to her adult daughter, Ms. Lillian Jones. However, since 2013, Ms. Brown had been living with her common-law partner, Mr. Michael Allmendinger, in the condominium. Despite their ten-year-long cohabitation and financial interdependence, Ms. Brown never updated her will to include Mr. Allmendinger as a beneficiary. 

Following Ms. Brown’s death, Mr. Allmendinger remained in the condominium. In September 2024, the estate trustee applied for an order of vacant possession to evict him. Mr. Allmendinger then applied for dependant support under Section 57 of the Succession Law Reform Act, seeking monthly support and possession of the property. The court heard both applications together.

The Estate’s Mutual Wills Defence and the Applicant’s Position

The estate trustee argued that Ms. Brown’s 2006 will was a “mutual will” executed alongside a mirror will from her late husband, creating a binding contract to pass all assets to their daughter and removing them from any dependant support claims. The court rejected this argument, applying Gefen Estate v. Gefen, 2022 ONCA 174. Establishing mutual wills requires clear evidence of a binding contract not to revoke. Merely executing mirror wills is insufficient. With no written contract or supporting evidence from drafting lawyers, the estate failed to meet its burden. 

In his application, the plaintiff, Mr. Allmendinger, had requested a constructive trust order, allowing him to continue staying in the property. However, during the oral argument, this request was abandoned. The estate agreed with the plaintiff that, as the common-law spouse, he was entitled to dependant support. But they disagreed with the plaintiff’s request for $4,873 per month for his anticipated life expectancy of 14 years. The estate instead proposed that Mr. Allmendinger might be eligible to receive $1,800 for a short, unspecified duration.

Superior Court Decision: Evaluating the Dependant Support Claim

During the oral argument, the plaintiff abandoned his request for a constructive trust order, and the estate accepted the fact that he was indeed a dependant of the deceased. The only matter left for the court to adjudicate was the amount and duration of dependant support he was eligible to receive. The court rejected the plaintiff’s request for $4,873 per month for 14 years. The supporting evidence submitted to show his budgeted monthly expenses and his anticipated life expectancy of 14 years were both unsatisfactory and inadmissible. 

Instead, the court relied on the provisions of Section 62 of the Succession Law Reform Act (SLRA) and applied the framework set out in Quinn v. Carrigan, 2014 ONSC 5682, to evaluate Mr. Allmendinger’s claim. The plaintiff was financially dependent on the deceased. However, he was also receiving roughly $1,833 per month from the federal government, which included CPP benefits of $1,470 and Guaranteed Income Supplement (GIS) of $363. 

In 2022, the deceased withdrew a total of $44,279 from her account. The court took this amount as the basis for arriving at the couple’s annual living expenditure. Out of $44,279, roughly $17,000 went to the property expenses (condo fees, insurance, and property taxes). This leaves $27,279. 

There is no evidence available to the court to figure out how much was spent on running and maintaining the deceased’s Mercedes diesel car. However, there is no supporting evidence for the plaintiff’s request for $500 per month for a car either. The plaintiff does not own a car, and his driver’s license expired back in 2011. He would have to use public transportation or hire vehicles. The court estimated this expense at $250 per month, which comes to around $3000 per year. 

This leaves $24,279, which went toward the couple’s combined living expenses, including food, clothing, and household supplies. Dividing this amount and then rounding it up, the court arrived at the annual living expenses of the plaintiff at $12,600 or $1,050 per month. Since the plaintiff has to vacate the condo, the court assigned $2,000 per month for rental expenses. Totalling these figures, the court arrived at the dependant support amount of $3,300 ($1,050 + $2,000 + $250) per month. 

This dependant support of $3,300 will continue till Mr. Allmendinger’s death. On top of this amount, the plaintiff will continue to receive eligible financial benefits from the federal government. Mr. Allmendinger will be solely responsible for any taxes to be paid on these support payments.

Common Misconception: Testamentary Freedom vs. Statutory Dependant Support Obligations

Testators often believe testamentary freedom grants an absolute right to disinherit partners. Similarly, unmarried partners frequently assume omitting them from a will leaves them without options due to the lack of automatic statutory property division for common-law spouses in Ontario.

The Reality Under Ontario Law

Statutory dependant support under Part V of the SLRA creates a mandatory floor that overrides testamentary intentions. Testators cannot contract out of providing adequate support for dependants. 

Statutory scheme: Section 58 of the SLRA empowers courts to order adequate dependant support from an estate when a deceased fails to do so. Section 57 includes common-law partners of three or more years as dependants. Section 62(1) lists statutory factors, including financial capacity and standard of living, to determine the amount and duration of the support. 

Application in the case: Because Ms. Brown supported Mr. Allmendinger during their 10-year relationship, he was a dependant under Section 57. The court applied Section 62 factors to override the 2006 will, awarding $3,300 per month until his death plus $34,650 in retroactive support and $2,525 in pre-judgment interest, while ordering him to vacate the condominium.

Key Observations:

In passing the judgment in favour of the plaintiff, the court made the following observations. 

• The mirror wills of the deceased and her late husband are not mutual wills in the absence of a binding contract not to revoke. 
• However, there is no evidence to indicate that the deceased ever intended to change her will and to include the plaintiff as a beneficiary of her estate. It is clear that the deceased intended to leave her estate to her only daughter, Ms. Jones. 
• Under SLRA, the dependant support claims take priority over the claims of non-dependant beneficiaries. In this case, there is only one dependant, Mr. Allmendinger. The plaintiff was financially dependent on the deceased during their relationship and meets the definition of a dependant under Section 57 of the SLRA. 
• The estate has also accepted the fact that the plaintiff was the common-law spouse of the deceased since they have been cohabiting for 10 years, meeting the definition under Section 29 of the Family Law Act. They had also declared themselves as common-law spouses in their tax filings.
• The plaintiff’s name is not on the title of the condominium, and he did not contribute financially to the purchase price or the ongoing carrying costs. While the plaintiff had initially requested a constructive trust order in his application, this was subsequently abandoned during the oral argument. So, no further claim stands in the way of the estate obtaining vacant possession of the condominium, and the plaintiff must vacate the condominium by October 15, 2026, at noon.
• The only disagreement is therefore on the amount and duration of the dependant support the plaintiff is entitled to from the estate, under Section 62 of the SLRA. Here, the court rejected the plaintiff’s request for $4,873 per month for his anticipated life expectancy of 14 years. The plaintiff’s evidence for the budgeted monthly expense of $4,873 was unsatisfactory, and the submitted evidence for his anticipated life expectancy of 14 years was also found to be inadmissible.
• The court arrived at the dependant support amount of $3,300 per month, following the framework set out in Quinn v. Carrigan, 2014 ONSC 5682, and the financial records of the plaintiff’s actual expenditure in 2022.
• The court ordered the estate to pay $3,300 per month until the plaintiff’s death plus $34,650 in retroactive support and $2,525 in pre-judgment interest.

Conclusion

The judgment confirmed that statutory dependant support limits testamentary freedom in Ontario. Testators must account for financial dependants when structuring estate plans; failing to do so allows courts to reallocate estate assets to fulfill dependant support obligations. 

Our wills & estates lawyers assist testators in creating enforceable estate plans and represent surviving partners and estate trustees in any SLRA dependant support litigation.

Essential Takeaways for Testators, Estate Trustees, and Unmarried Partners

• For Testators & Unmarried Partners: Update estate documents after entering a common-law relationship to prevent claims against your estate.
• For Omitted Dependant Partners: Dependant common-law partners omitted from a will may still have strong statutory priority claims under the SLRA. 
• For Estate Trustees & Beneficiaries: Challenge unproven claims by examining historical financial records and insisting on complete cross-examination disclosure.

How an Experienced Wills & Estate Lawyer Protects Your Rights

An experienced wills and estates lawyer helps testators draft enforceable estate plans, calculates SLRA entitlements, cross-examines support claimants, and defends estates against exaggerated claims.

If you are navigating an estate dispute or dependant support claim in Ontario, contact our legal team today for assistance.