# Mental capacity assessments for probate disputes | Nellie Supports Source: https://www.nelliesupports.com/guides/mental-capacity-assessments-for-probate-disputes Canonical: https://www.nelliesupports.com/guides/mental-capacity-assessments-for-probate-disputes Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-07-19 # Mental capacity assessments for probate disputes In a probate dispute, capacity evidence usually reconstructs a past decision from the surviving record. Wills require the Banks v Goodfellow test; lifetime transactions may raise different capacity questions, while knowledge and approval and undue influence remain separate legal issues. ## 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](https://www.legislation.gov.uk/ukpga/2005/9/contents) ## Copyright 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. ## Abstract In a probate dispute, capacity evidence usually reconstructs a past decision from the surviving record. Wills require the Banks v Goodfellow test; lifetime transactions may raise different capacity questions, while knowledge and approval and undue influence remain separate legal issues. This guide covers the relevant evidence, support, process and limits in England and Wales. ## What is on this page - [Contact](https://www.nelliesupports.com/guides/mental-capacity-assessments-for-probate-disputes) - [Overview](https://www.nelliesupports.com/guides/mental-capacity-assessments-for-probate-disputes) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/mental-capacity-assessments-for-probate-disputes) - [Related Pages](https://www.nelliesupports.com/guides/mental-capacity-assessments-for-probate-disputes) In a probate dispute, capacity evidence usually reconstructs a past decision from the surviving record. Wills require the Banks v Goodfellow test; lifetime transactions may raise different capacity questions, while knowledge and approval and undue influence remain separate legal issues. The expert informs the capacity issue within their competence; the court decides validity, legal burdens and the weight of the evidence. ## Where capacity sits in a probate dispute A contested estate may raise testamentary capacity, validity of a lifetime transaction, knowledge and approval, undue influence or execution. Identify the actual ground and relevant date before deciding whether capacity evidence will assist. Not every probate dispute turns on capacity. ## The grounds where capacity evidence decides matters Testamentary capacity uses Banks v Goodfellow. A lifetime gift or LPA raises its own question and applicable framework. Knowledge and approval and undue influence have separate elements and evidential rules, even where the same circumstances matter. The solicitor should define those legal issues for any expert. ## The retrospective exercise at the dispute's centre Reconstruct the material time from the will or transaction file, relevant health and care evidence, the person’s communications and reliable witness accounts. Evaluate the record’s purpose and reliability; do not assume all late accounts deserve a fixed discount or every missing note establishes a defect. ## Acting for those propounding the will For a party supporting a will, gather relevant instructions, attendance notes, previous documents, medical evidence and any assessment. Ask an expert to evaluate the complete evidence under the correct test rather than assemble only material favouring validity. Golden-rule compliance is useful evidence but not conclusive. ## Acting for those challenging For a party questioning a will, identify specific evidence relevant to the legal ground and material time. Diagnosis, changed wishes or an unequal distribution does not by itself prove lack of capacity. The applicable burden and any change in evidential burden require legal advice. ## The critical review of the other side's evidence A review can identify whether a report uses the right test and dates, evaluates contrary evidence and states its limits. Distinguish an MCA causal requirement from the testamentary framework; the absence of MCA wording does not alone undermine a proper Banks v Goodfellow opinion. The review should inform the issues rather than promise negotiating leverage. ## Part 35 discipline and the single joint expert option Expert evidence in civil probate proceedings is subject to CPR Part 35, Practice Direction 35 and the court’s directions, including permission. A single joint expert may be appropriate if agreed or directed. The expert assists the court independently of whichever party instructs or pays. ## Timing, mediation and the settlement effect Identify and preserve records early, then consider whether proportionate expert work could assist advice or dispute resolution. An opinion may clarify strengths and limits but does not guarantee settlement, reduced cost or avoidance of trial. ## Key takeaway Define the ground, test and material date, gather the relevant evidence fairly and commission proportionate expert work where it can assist. The report should distinguish capacity from neighbouring doctrines and leave legal findings to the court. ## Frequently asked questions ### What type of assessment is right for probate disputes? A retrospective opinion under the test applicable to the disputed will or transaction may help. First identify the legal question and what evidence survives; not every probate dispute needs a capacity expert. ### Does a diagnosis automatically mean someone lacks capacity? No. Dementia or another diagnosis does not establish lack of testamentary capacity. Apply Banks v Goodfellow at the relevant time, considering how any disorder affected the particular will. Other disputed lifetime decisions need their own test. ### What should a report cover for mental capacity assessments for probate disputes? A probate capacity opinion should identify the decision, dates, correct test, evidence, reasoning and limitations. Seek advice on whether an expert would assist and obtain permission where required. It cannot establish every ground of validity or predict the outcome. ## Related mental capacity assessment pages The related guides below provide further explanation of the decisions, evidence and legal processes discussed here. ### Testamentary Capacity Assessment ### Retrospective capacity in disputed transactions and wills ### Retrospective testamentary capacity and disputed wills ### Read guide ## Practical next steps Ask the probate solicitor to identify the legal ground and material dates. Preserve the will file and relevant records, provide the complete evidence to any expert and seek court permission before relying on expert evidence where required. ## Primary sources and official guidance [Mental Capacity Act Code of Practice](https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice) ## Related information - [Mental Capacity Assessment to Revoke a Lasting Power of Attorney](https://www.nelliesupports.com/lasting-power-of-attorney-services/revoke-lpa) - [NHS Continuing Healthcare Support](https://www.nelliesupports.com/services/continuing-healthcare) - [CHC Appeal Application: Drafting and Submission](https://www.nelliesupports.com/services/continuing-healthcare/chc-appeal-application) --- Nellie Supports Ltd · 0333 987 5118 · nellie@nelliesupports.com Office 11 and 12, Unit 20, Springfield Business Park, Grantham, NG31 7FZ