# Retrospective Testamentary Capacity | Nellie Supports Source: https://www.nelliesupports.com/guides/retrospective-testamentary-capacity-and-disputed-wills Canonical: https://www.nelliesupports.com/guides/retrospective-testamentary-capacity-and-disputed-wills Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-07-19 # Retrospective testamentary capacity and disputed wills A retrospective testamentary opinion applies Banks v Goodfellow to the relevant will-making dates using the will file, medical and care records, and witness evidence. ## Author and Publication Author: Nellie Supports Ltd Publication Date: 15/05/2026 ​ ## Citation Key v Key [2010] EWHC 408 (Ch). ## Copywright Copywright © 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. ## About this guide A retrospective testamentary opinion applies Banks v Goodfellow to the relevant will-making dates using the will file, medical and care records, and witness evidence. The sections below explain the evidence, practical steps and limits of the assessment or process. ## What’s on this page - [Contact](https://www.nelliesupports.com/guides/retrospective-testamentary-capacity-and-disputed-wills) - [Overview](https://www.nelliesupports.com/guides/retrospective-testamentary-capacity-and-disputed-wills) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/retrospective-testamentary-capacity-and-disputed-wills) - [Related Pages](https://www.nelliesupports.com/guides/retrospective-testamentary-capacity-and-disputed-wills) When a will is disputed after death, testamentary capacity has to be assessed retrospectively: an expert reconstructs the testator's capacity at the date of execution from the evidence that survives. The legal test remains Banks v Goodfellow: understanding the nature and effect of a will, the extent of the estate in broad terms, and the claims of those who might expect to benefit, with no disorder of the mind distorting the disposition. The opinion stands or falls on contemporaneous records: the will file, attendance notes, medical and care records and the pattern of earlier wills. This guide explains how these opinions are built and used in probate disputes. ## Assessing capacity at the date the will was made A retrospective testamentary opinion considers Banks v Goodfellow at the legally relevant will-making dates. Where the testator has died, the assessor cannot interview them and must reason from the surviving evidence. The report should identify the records available, distinguish observation from recollection and explain any gap that prevents a firm conclusion. ## The test remains Banks v Goodfellow at the material time The question is whether, when instructions were given and the will executed, the testator understood the nature and effect of making a will, the broad extent of their property and the claims of those they ought to consider, free of a disorder of the mind poisoning their affections. The material time matters. Evidence of confusion months later, or of a diagnosis made afterwards, bears on the question only insofar as it illuminates the person's likely state at execution, and the opinion should be anchored explicitly to the relevant dates. ## The records that carry a retrospective opinion The weight of a retrospective opinion comes from the records: GP and hospital notes around the material time, cognitive testing where it exists, medication changes, social care records, the drafting solicitor's file and attendance notes, correspondence in the testator's own hand and the will itself, read against its predecessors. The solicitor's file is often decisive, because a detailed attendance note recording the testator's own explanation of their estate and their reasons is contemporaneous evidence of exactly what the test requires. ## Where the golden rule was not followed The Golden Rule recommends that a will made by an elderly or seriously ill testator be witnessed and approved by a medical practitioner who satisfies themselves about capacity and understanding and records the examination. It is good practice, not a separate validity test: compliance does not prove validity and non-compliance does not invalidate the will. The solicitor should consider appropriate medical involvement and the evidence of each relevant witness. ## Witness accounts and their limits Accounts from family, friends, carers and professionals who knew the testator can add texture the records lack: how the person managed daily life, how they spoke about their estate and their family, and how they changed over time. However, recollection is shaped by time and by interest in the outcome, and accounts from those who benefit or lose under the will must be weighed with particular care. A sound retrospective opinion uses witness evidence to supplement the contemporaneous record, as opposed to substituting for it. ## Fluctuation, lucid intervals and the date-specific question Delirium, dementia and mental illness can have different courses and may fluctuate. A person’s capacity for another decision, or at another date, does not decide testamentary capacity when this will was made. Evidence close to instructions and execution may help, but its quality and relevance matter as well as its date. Explain the effect of any gap or fluctuation rather than assuming a lucid interval or continuous incapacity. ## What a retrospective testamentary opinion should contain The opinion should identify the material dates, the test applied, every source reviewed, the evidence bearing on each limb of Banks v Goodfellow, the analysis connecting any impairment to the abilities the test requires and a conclusion expressed with calibrated confidence. Where the opinion may be used in contested probate proceedings, it should be prepared to CPR Part 35 standards, with the expert's overriding duty to the court, the range of reasonable opinion and the reasoning set out in full. ## The honest limits of retrospective evidence Sometimes the evidence cannot support a firm opinion. Explain what each source establishes, what remains uncertain and whether further records could help. The court evaluates the opinion with all the other evidence; neither professional confidence nor a cautious conclusion determines the result. ## Key takeaway A retrospective testamentary capacity opinion stands or falls on its anchoring: the right test, applied at the right dates, built from the contemporaneous record and supplemented cautiously by recollection. The strongest opinions show their working on every limb of Banks v Goodfellow and state their confidence honestly, which is exactly what a probate court needs from expert evidence in a disputed will. ## Frequently asked questions ### Does a diagnosis automatically mean someone lacks capacity? No. Diagnosis, age or family disagreement alone does not decide testamentary capacity. For a person’s own will, consider each limb of Banks v Goodfellow at the relevant time, with suitable communication support. The Mental Capacity Act framework for a statutory-will application is a separate question. ### What evidence helps with testamentary capacity? The will file and the drafting solicitor's attendance notes are usually the most important source, followed by GP and hospital records around the execution date, care records, earlier wills showing the pattern of the person's intentions and any capacity assessment completed at the time. In Key v Key the court criticised the failure to obtain proper capacity evidence at execution and set the will aside. ### When might a formal opinion be useful? A retrospective opinion may help where there is a genuine capacity issue in a probate dispute and relevant records survive. Take legal advice on the legal test, burden of proof, scope and any required permission for expert evidence before incurring the cost. A contemporary diagnosis or later decline is not by itself an answer about the will-making date. ## Related mental capacity assessment pages The related pages below explain connected decisions, evidence requirements and legal processes. ### Testamentary Capacity Assessment ### Solicitor instructions and evidence in will capacity assessments ### Testamentary assessment costs for complex estates in England ### Read guide ## Practical next steps Before seeking a report, write down the exact decision, relevant date, reason for concern and intended use. Gather the documents that explain the real options and any communication needs. Check any required form or court direction, agree the scope and total fee, and clarify how missing evidence or further questions will be handled. ## Primary sources and official guidance [Mental Capacity Act 2005](https://www.legislation.gov.uk/ukpga/2005/9/contents) [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