Heyes v Holt – Weak Claims, Summary Judgment and Quasi-Security for costs in the alternative

    Heyes v Holt – Weak Claims, Summary Judgment and Quasi-Security for costs in the alternative

    Many probate disputes are genuine. However, quite a lot of claims are weak, and are pursued in the belief that the defendant is bound to settle if the claimant threatens a claim.

    Understandably, defendants are often reluctant to settle such disputes – the testator wanted them rather than the claimant to inherit, the Will is perfectly valid, and there is no sound reason (other than avoiding legal costs) to pay the claimant a significant portion of the estate. In those circumstances, some claimants engage in brinkmanship and issue proceedings to try and increase the pressure on the defendant to settle.

    Defending a claim to trial can be expensive. Furthermore, the litigation process takes time, and the longer the case goes on, the longer the defendant is kept out of their inheritance.

    What Can be Done?

    The case of Lumb v Lumb [2023] showed what can be done where a weak claim is pursued in the hope that the defendant will settle or that the claimant will get lucky at trial.

    In Lumb, the Claimant issued proceedings in a weak challenge to a Will based on want of knowledge and approval and undue influence. In response, the Defendant took the unusual step of applying for summary judgment - the Defendant asked the Court to short circuit the litigation process and effectively try the case shortly after proceedings had been issued; a defendant can apply for summary judgment where the claimant has no real prospect of winning at trial.

    The Defendant in Lumb was successful on its application for summary judgment and managed to snuff out the claim at an early stage and without incurring all the costs of defending the case all the way to trial (though the decision raised novel issues about the law of costs and resulted in further litigation, which was ultimately decided in the Defendant’s favour).

    Heyes v Holt Goes Further

    The judgment in Heyes v Holt [2024] EWHC 779 (Ch) can perhaps be seen as continuing the trend in Lumb, giving defendants further, effective ways to deal with poor claims that are pursued more as a negotiation tactic than on the merits of the case.

    In Heyes, the Claimant pursued a questionable challenge to a Will in a claim based on proprietary estoppel. The Defendant responded by applying for summary judgment, as had happened in Lumb.

    However, the Claimant’s case in Heyes was better than the claim in Lumb – the Claimant was unlikely to win, but the claim was not absolutely hopeless. Consequently, the Defendant’s lawyers guarded against the risk of losing the application for summary judgment and furthered the Defendant’s attempts to snuff out the claim by seeking a Conditional Order under CPR 24.6 and CPR 3.1(3).

    Under CPR 24.6, when deciding an application for summary judgment, the Court can make its Order disposing of the summary judgment application subject to the conditions set out in CPR 3.1(3), and CPR 3.1(3) gives the Court the power to make an Order conditional upon a party paying a sum of money into Court. Furthermore, it gives the Court the power to set consequences for the party ordered to pay money into Court failing to do so.

    Thus, the Defendant in Heyes was entitled to apply for summary judgment and, if it was not successful on that front, to ask the Court to order the Claimant to pay a sum of money equal to the Defendant’s estimated costs to trial to the Court for it to hold pending a final judgment, and that if the Claimant did not pay that sum within a short time of being ordered to do so, the claim would be struck out, i.e. terminated by the Court for the Claimant failing to comply with an Order.

    Applying for a Conditional Order in the alternative to being granted summary judgment turned out to be a shrewd move - the Court did not give summary judgment, but it did grant the Conditional Order. Consequently, the Claimant effectively had to pay all of the Defendant’s costs of defending the claim to trial up front, or its case would be thrown out.

    Such an Order would likely be as useful as to a defendant as a summary judgment in most cases.


    Though attempting to settle is an option defendants should always keep in mind, Lumb and Heyes provide useful persuasive authority and a means of disposing of weak claims that do not settle for one reason or another.

    How can we help?

    For assistance in dealing with a probate dispute, or questions on any contested wills and estate administration matters, contact Ralph Wheeler on ralph.wheeler@porterdodson.co.uk or click below for our dedicated help line.


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