GUIDES
Where pressure over a will is suspected, assess testamentary capacity under Banks v Goodfellow and investigate the circumstances separately. The person needs a private, supported opportunity to explain their wishes; a capacity opinion cannot determine a disputed claim of undue influence.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Mental Capacity Act 2005, c. 9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents
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Where pressure over a will is suspected, assess testamentary capacity under Banks v Goodfellow and investigate the circumstances separately. The person needs a private, supported opportunity to explain their wishes; a capacity opinion cannot determine a disputed claim of undue influence. This guide covers the relevant evidence, support, process and limits in England and Wales.
Where pressure over a will is suspected, assess testamentary capacity under Banks v Goodfellow and investigate the circumstances separately. The person needs a private, supported opportunity to explain their wishes; a capacity opinion cannot determine a disputed claim of undue influence. Record the person’s own account, relevant changes from earlier instructions and the source of concerns. Independent legal advice and safeguarding work may be needed alongside the assessment.
Where undue influence is suspected, the safest assessment is not a brief capacity note or a general welfare opinion. It should be an independent testamentary capacity assessment focused on the exact will decision, the person’s own wishes, their understanding of the estate and beneficiaries, and any evidence that pressure may be affecting their ability to make a free decision.
Apply Banks v Goodfellow to the specific will and material time: understanding making a will and its effects, broadly understanding the property and considering the claims of those who might expect to benefit, without a disorder or delusion distorting the dispositions in the way addressed by that test. MCA principles can inform supportive practice but do not replace the testamentary test.
Useful evidence may include draft wills, previous wills, estate summaries, solicitor attendance notes, medical records, family history, recent changes in relationships, dependency on the proposed beneficiary, isolation, communication barriers and any sudden or unexplained change in instructions. The report should distinguish observed evidence from information supplied by family members or professionals.
A person may have testamentary capacity but still be vulnerable to pressure, coercion or control. The assessor should not decide a disputed legal claim of undue influence, but they can record relevant risk factors, explore whether the person can explain their own reasoning and identify whether further legal, safeguarding or professional steps may be needed.
The person should normally be assessed away from anyone who may benefit from the will or influence the decision. The assessor should consider privacy, communication support, timing, fatigue, medication, sensory needs and whether the person has had a genuine opportunity to express their own wishes without prompting.
The report should set out the specific will decision, the evidence reviewed, the relevant information, what the person said in their own words, what support was provided, how risks were handled and why the conclusion follows from the evidence. This is especially important if the will is later scrutinised.
Consider additional evidence or specialist input where there are unexplained changes, dependence on someone who benefits, isolation, communication barriers or fluctuating abilities. Business, trust or overseas assets may need legal explanation. These features call for enquiry; none automatically establishes incapacity, coercion or a need for a particular service tier.
Before booking, clarify whether the assessment is for a new will, a change to an existing will, a disputed will, a solicitor instruction or family concern. Also confirm whether medical records, previous wills, estate information and details of the proposed changes can be provided securely.
Keep testamentary capacity and alleged undue influence separate. Provide privacy and support, examine the will and surrounding evidence, and explain the limits of the opinion. A person with capacity can still be subject to coercion.
Choose a practitioner with relevant testamentary assessment skills who can work with the person’s communication needs and remain independent in opinion. Agree the will, evidence and concerns to address. The adequacy of a GP’s or another professional’s evidence depends on its content and competence, rather than job title alone.
A report may record evidence of pressure and explain how the circumstances affect the reliability of the assessment. It cannot determine a disputed legal claim of undue influence or guarantee that a will is valid.
The person should have a private opportunity to speak, with appropriate communication support. Record who attended and why, and manage any interest that a supporter has in the outcome. Ideally obtain relevant evidence before execution; a retrospective opinion is possible but depends on the surviving record.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Raise specific concerns privately with the will-drafting solicitor. Preserve relevant documents and messages, avoid coaching the person and discuss safeguarding action where there is a concern about abuse or coercion.
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