Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Inheritance (Provision for Family and Dependants) Act 1975, c. 63. Available at: https://www.legislation.gov.uk/ukpga/1975/63/contents
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.
A testamentary capacity assessment for a complex family situation applies the same legal test as any other will, Banks v Goodfellow (1870) read alongside the Mental Capacity Act 2005, but the evidence has to work harder, because complexity is precisely where wills are challenged. Second marriages, estrangement, unequal provision and family businesses all create competing claims, and the assessment should be commissioned and written as though it will one day be read aloud in court. This guide explains what makes a family situation complex, why that raises the evidential bar and how to choose a provider for a will that is likely to be scrutinised.
What counts as a complex family situation
The situations that most often call for careful capacity evidence include second marriages and blended families where a spouse and children from an earlier relationship both hold expectations of the estate, estrangement where a child is excluded or left significantly less than others, unequal provision where one child has been a carer or where a family business or farm cannot sensibly be divided, late changes to a settled will following a diagnosis, bereavement or new relationship, and concerns about pressure from within the family where someone close to the person stands to benefit from the change.
Complexity is not incapacity
None of these situations means the person lacks capacity. Most testators in complex families have full capacity and simply hold difficult, sometimes unpopular, intentions, and the law protects their right to dispose of their estate as they choose. The assessment exists to evidence that choice, not to police it, and a person's decision to exclude a child or favour one branch of the family is not, of itself, evidence of anything except a decision someone may later dislike.
Why complexity raises the evidential bar
Under Banks v Goodfellow a testator must understand the nature of making a will and its effects, the extent of the property being disposed of, and be able to comprehend and appreciate the claims to which they ought to give effect. In a divided or blended family those claims compete, so explaining why an estranged son receives nothing or why a farm passes to one daughter requires the person to weigh exactly the information a future challenger will say they could not weigh, and the report must show that weighing in the person's own words.
The golden rule and contemporaneous evidence
Where a testator is elderly or seriously ill, the courts have long encouraged solicitors to have capacity assessed and recorded at the time the will is made, the practice often called the golden rule following Kenward v Adams (1975). A contemporaneous, decision-specific assessment is far stronger evidence than anything reconstructed years later, and it protects the will, the solicitor who drafted it and the people the person actually chose to benefit.
What a robust assessment covers
The assessment should be grounded in the actual instructions rather than capacity in the abstract: the estate in outline, the people with potential claims and the practical effect of the intended provisions. It should evidence how any impairment affects the person's ability to understand, retain, use or weigh that information and to communicate the decision, with the causative link made explicit rather than assumed, and it should record that all practicable steps were taken to support the person to decide, in line with section 1(3) of the Mental Capacity Act 2005, at the material time.
Where undue influence concerns exist
Capacity and undue influence are legally distinct questions. An assessment can evidence vulnerability to pressure, record the person's free account in their own words and describe the circumstances observed, whilst undue influence itself remains a matter for the court. Where pressure is the central concern, our separate guides on undue influence and testamentary capacity cover that boundary in detail, and an enhanced assessment with extended evidence gathering is usually the right instruction.
Choosing a provider for a complex case
For a will that is likely to be scrutinised, look for independence from every branch of the family, direct experience of disputed wills and retrospective work, contemporaneous record keeping and a report written to withstand challenge as opposed to one written to file. Ask whether an enhanced tier is available where a challenge is foreseeable, and expect the provider to work alongside the instructing solicitor so the assessment addresses the actual provisions being made.
Timing the assessment
Ideally the assessment sits alongside the giving of instructions, so that it addresses the will actually being made rather than a hypothetical one. Capacity is assessed at the material time, so fluctuating presentations need careful timing and documentation, and where a will has already been executed and is now in dispute, a retrospective testamentary capacity assessment addresses the historic decision from records and accounts.
Key takeaway
Complex families produce contested estates, and the will that survives is the one whose capacity evidence was built for scrutiny from the outset: decision-specific, contemporaneous, grounded in the actual provisions and showing the person's own reasoning for the choices a challenger will attack. Nellie Supports completes testamentary capacity assessments across England and Wales as one of our core specialisms, within the largest identified specialist private social work and mental capacity assessment practice in England and Wales, with more than 11,000 formal assessments and reports completed and every report peer reviewed before delivery.
Frequently asked questions
Does a complex family mean my relative will fail the capacity test?
No. The legal test is the same for every testator. Complexity affects how much evidence a careful family gathers, not the threshold the person must meet, and most testators in complex families have full capacity.
Can an assessment stop the will being challenged?
No assessment can prevent a challenge being brought. What a contemporaneous, decision-specific report does is give the court strong evidence with which to answer one, which is frequently the difference between a challenge threatened and a challenge pursued.
Should the assessment happen before or after instructions are given to the solicitor?
Ideally alongside them, so the assessment addresses the actual provisions being made. We work with instructing solicitors to time this properly, particularly where the golden rule applies.
What if the person's capacity fluctuates?
Capacity is assessed at the material time. Fluctuating presentations need careful timing, longitudinal evidence and clear documentation of when and how the assessment took place.
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.
Making or defending a will in a complex family?
Nellie Supports completes testamentary capacity assessments across England and Wales, with a same working day response and every report peer reviewed before delivery. Call 0333 987 5118 or visit the testamentary capacity assessment service page.