GUIDES
In England and Wales, capacity to make a will is assessed under Banks v Goodfellow. The question concerns the particular will at the relevant time; a diagnosis, cognitive score or general Mental Capacity Act assessment cannot settle it.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Wills Act 1837, c. 26. Available at: https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/contents
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
In England and Wales, capacity to make a will is assessed under Banks v Goodfellow. The question concerns the particular will at the relevant time; a diagnosis, cognitive score or general Mental Capacity Act assessment cannot settle it. This guide covers the relevant evidence, support, process and limits in England and Wales.
In England and Wales, capacity to make a will is assessed under Banks v Goodfellow. The question concerns the particular will at the relevant time; a diagnosis, cognitive score or general Mental Capacity Act assessment cannot settle it. The person must understand making a will and its effects, have a broad understanding of their property and be able to consider the claims of those who might expect to benefit. A disorder or delusion must not distort the dispositions in the way addressed by the common-law test.
Banks v Goodfellow asks whether the testator can understand the nature and effect of making a will, broadly understand the property being disposed of and consider the claims of people who might expect to benefit. It also addresses a disorder or delusion that affects the dispositions. The assessment must examine those matters in the context of this will, rather than require perfect memory or agreement with the choices.
For a will made by the testator, apply the common-law testamentary test rather than an MCA functional checklist alone. MCA principles can inform supportive practice, but do not replace Banks v Goodfellow. A Court of Protection statutory-will application is a different process requiring legal advice.
The testator needs a broad understanding of their property, rather than an exact valuation or recall of every asset. Explain significant property, savings, investments, debts and relevant interests in an accessible form. A complicated estate does not require the testator to perform the work of an accountant or solicitor.
Explore whether the person can bring to mind and consider the claims of people who might expect to benefit, including any dependants. They may choose to exclude a relative or make an unequal gift. An unpopular choice or an explanation others find unpersuasive does not itself establish incapacity; identify any impairment relevant to the legal test.
The fourth limb addresses delusions, fixed false beliefs or affective disorders that distort the testator's natural affections or judgement. A diagnosis of dementia or mental illness does not by itself defeat capacity. What matters is whether the condition actually influences the disposition, for example a delusional belief about a relative that drives their exclusion from the will.
The golden rule recommends medical involvement in the making of a will by an older or seriously ill testator, with capacity considered and findings recorded. It is a rule of good practice. Following it does not make a will immune from challenge, and failing to follow it does not by itself invalidate a will. The solicitor should consider what evidence is appropriate for the circumstances.
A defensible opinion draws on the will instructions, attendance notes, medical and GP records, any cognitive testing, evidence of how the testator explained their wishes, and the circumstances in which the will was made. Suspicious circumstances, late changes, isolation from family, or a beneficiary involved in arranging the will should be recorded and analysed rather than left out.
A strong report sets out the instruction, the date and the will concerned, the Banks v Goodfellow framework applied limb by limb, the evidence reviewed, the assessment findings, an analysis of each limb against the facts, any concerns about pressure or disorder, and a clear conclusion. It should explain its limitations, including any reliance on records or any inability to examine the testator directly.
Apply Banks v Goodfellow to the particular will and material time, explaining the evidence and any effect of a disorder on the dispositions. Capacity is separate from proper execution, knowledge and approval, and undue influence; a capacity report cannot establish every requirement for a valid will.
No. A person with dementia may meet the Banks v Goodfellow test for the particular will at the relevant time. Support, timing and evidence about their own instructions matter. A contemporaneous report can assist but does not guarantee validity.
Banks v Goodfellow remains the common-law framework for capacity to make a will in England and Wales. The assessment must concern the specific will and material time. A solicitor should advise on any disputed application of the test and the separate validity requirements.
Discuss formal evidence with the will-drafting solicitor where there is genuine doubt about capacity, serious illness, a significant change or a concern about pressure. Age alone is not proof of incapacity. After death, an expert may give a retrospective opinion from the surviving record, with its limitations explained.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
If will-making capacity is genuinely in doubt, speak to the will-drafting solicitor before execution. Share the proposed and earlier wills, an estate outline and relevant health evidence; discuss whether medical evidence under the golden rule is appropriate.
A GOOD PLACE TO START
Tell us what is happening and what you need help with. We will listen, explain the options and help you find the right starting point.