Testamentary Capacity Assessment

Testamentary capacity refers to a person’s ability to understand and make decisions about their will. The legal standard is set out in the Banks v Goodfellow (1870) case, which requires that a person:

1. Understands what a will is and the effect of making one

2. Knows the extent of their estate at a basic level

3. Is aware of those who may have a claim on their estate

4. Is free from any mental disorder or undue influence that could affect their decisions

It is important to remember that testamentary capacity is decision-specific, not a general medical judgement. Many people with dementia, brain injuries, learning disabilities or communication difficulties can still make a valid will with the right support.

Solicitors often request an independent assessment when:

• There are concerns about cognition, memory or decision-making

• The client’s wishes have changed significantly

• There are complex family dynamics or potential disputes

• A previous will is being overturned or amended

• A diagnosis (e.g., dementia, brain injury) raises questions about capacity

• The solicitor wishes to follow the “Golden Rule” for elderly or vulnerable clients

A clear, well-documented testamentary capacity assessment is one of the strongest protections against challenges to the validity of a will.

My approach is warm, patient and person-centred. I take time to understand the individual and support them to express their reasoning.

A typical assessment includes:

1. Background information

Reviewing referral details and understanding the context of the will-making decision.

2. Explanation of the decision

Ensuring the person understands what a will is and the consequences of making one.

3. Exploration of their estate

Discussing their property, savings, and significant assets at a level they can reasonably understand.

4. Understanding of beneficiaries and potential claims

Exploring relationships, dependants, and reasons behind intended decisions.

5. Cognitive observations

Assessing memory, reasoning, orientation, communication, and ability to weigh and retain information.

6. Supportive communication

Allowing time, adapting questions, and giving space for the person to think and respond without pressure.

Every testamentary capacity assessment includes:

✔ A clear, structured medico-legal report

Written using a format trusted by solicitors and aligned with the Banks v Goodfellow test.

✔ Evidence-based conclusions

Each limb of the test is individually addressed, with quotes where appropriate.

✔ Professional, independent opinion

Objective, detailed, and suitable for court or future reference.

✔ Prompt delivery

Reports are returned quickly, with urgent assessments available where needed.

Solicitors receive:

• A reliable record of the client’s understanding

• Evidence supporting the validity of the will

• Reduced risk of future disputes or allegations

• Clear justification when testamentary capacity is present

• Support in complex or sensitive family circumstances

Independent assessments help ensure transparency, fairness, and legal compliance.

I support:

• Private client solicitors

• Probate professionals

• Will writers

• Families

• Older adults planning their affairs

• Individuals with cognitive or communication difficulties

Assessments can take place at home, a solicitors office or in care settings.