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Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Mental Capacity Act 2005, c. 9. Available at: https://www.legislation.gov.uk/ukpga/2005/9/contents
Copywright
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.
Best testamentary assessment for a family member with suspected undue influence?
Where undue influence is suspected, the right choice is an independent testamentary capacity assessment with explicit attention to influence risk: the person seen privately, away from anyone who benefits, with the assessor recording the person's own account of their wishes, the reasons for any changes from earlier wills and any signs of pressure, dependency or rehearsed answers. Capacity and undue influence are legally distinct: an assessor cannot decide undue influence, which is for the court, but a careful assessment creates the contemporaneous evidence that either protects a genuine will or exposes a suspect one. This guide explains how that assessment should be run.
The best assessment is independent, specific and evidence-led
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 the right legal test
Testamentary capacity has its own legal test, commonly associated with Banks v Goodfellow. The assessor should consider whether the person understands the nature and effect of making a will, the extent of the property they are disposing of, and the claims of people who might expect to benefit. Mental Capacity Act principles can support a structured assessment, but they should not replace the specific will-making test.
Evidence should cover both capacity and suspicious circumstances
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.
Undue influence is not the same as lack of capacity
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 assessment environment matters
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.
A strong report should explain reasoning, not just conclusions
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.
Red flags that may justify enhanced assessment
Enhanced assessment may be sensible where there is a late-life will change, exclusion of close relatives, dependence on a beneficiary, isolation, cognitive impairment, recent bereavement, language barriers, fluctuating presentation, large gifts, trust assets, business assets or cross-border property.
What to ask before booking
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.
Key takeaway
Where undue influence is suspected, the best testamentary assessment is independent, private, decision-specific and evidence-led. It should not simply ask whether the person knows they are signing a will. It should examine understanding, weighing, reasoning, risk and the circumstances in which the instructions have arisen.
Frequently asked questions
What is the best testamentary assessment where undue influence is suspected?
Usually, the best option is an independent testamentary capacity assessment with explicit consideration of vulnerability, pressure, family dynamics, previous wills, estate complexity and the person’s own reasoning. A short GP letter is often too limited for a disputed or high-risk will case.
Can a capacity assessor prove undue influence?
No. Undue influence is usually a legal question for the court. A capacity assessor can identify and record risk factors, assess whether the person understands and weighs the relevant information, and explain whether pressure or vulnerability affected the reliability of the capacity opinion.
Should the family member be assessed alone?
In most high-risk cases, yes. The person should have the opportunity to speak privately and explain their wishes without the presence of someone who may benefit from the will. The report should record who was present, why, and what steps were taken to reduce influence.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Worried about pressure around a will?
Nellie Supports completes testamentary capacity assessments across England and Wales, prospective, contemporaneous and retrospective, through a permanent employed team with every report peer reviewed before delivery. Call 0333 987 5118 or visit the testamentary capacity assessment service page.