GUIDES
A person’s own will and a Court of Protection statutory will follow different legal routes. Banks v Goodfellow governs ordinary testamentary capacity; the court’s statutory jurisdiction uses the Mental Capacity Act.
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
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 person’s own will and a Court of Protection statutory will follow different legal routes. Banks v Goodfellow governs ordinary testamentary capacity; the court’s statutory jurisdiction uses the Mental Capacity Act. The sections below explain the evidence, practical steps and limits of the assessment or process.
A person making their own will is assessed under Banks v Goodfellow. A statutory will is authorised by the Court of Protection under the Mental Capacity Act 2005; the court must establish lack of capacity for its statutory jurisdiction and consider best interests. These frameworks are distinct. A capacity report should state which legal question it addresses, and the solicitor should advise on the appropriate route, evidence and urgency.
An ordinary will records the testator’s own decision and must satisfy testamentary capacity and the other legal requirements. A statutory will is a separate court process for a person who lacks capacity within the Mental Capacity Act framework. An attorney or deputy cannot simply make a will for the person. The Court of Protection decides whether to authorise a statutory will and its terms.
Testamentary capacity is assessed against the test in Banks v Goodfellow. The person must understand the nature of making a will and its effects, understand in broad terms the extent of the property being disposed of, and be able to comprehend and appreciate the claims to which they ought to give effect, and no disorder of the mind should poison their affections or pervert their sense of right so as to influence the disposal. The threshold is not perfection. A testator does not need to recall every asset or value precisely, but they must hold a broad, workable picture of their estate and of the people with claims upon it.
A diagnosis does not itself remove the ability to make an ordinary will. Where the person meets Banks v Goodfellow, support their instructions and record the relevant evidence, including appropriate medical involvement where the Golden Rule applies. A capacity opinion does not replace the solicitor’s work on knowledge and approval, execution or other validity issues.
If a statutory will is being considered, the Court of Protection must establish the relevant lack of capacity under the Mental Capacity Act and determine the application in the person’s best interests. A Banks v Goodfellow opinion alone should not be treated as automatically establishing that statutory jurisdiction. Legal advice is needed about the correct capacity question, proposed will, interested parties and application requirements.
For an ordinary will, capacity evidence should address Banks v Goodfellow and the material dates. For a statutory-will application, the COP3 should address the relevant Mental Capacity Act decision, with separate evidence of the estate, proposed will, wishes, relationships and best interests as required by COP GN8 and the court. Existing evidence may help both enquiries but should not be assumed to answer two different tests without further analysis.
A statutory will is not simply what the applicant wants or what a reasonable person would choose. The court weighs the person's best interests in the widest sense, and the person's past and present wishes, feelings, beliefs and values carry substantial weight. Evidence of what the person said and did whilst they had capacity, of earlier wills and of family relationships therefore matters enormously, and an assessment that records the person's current wishes and feelings, even where capacity is absent, contributes directly to the court's analysis.
Timing matters where illness progresses or fluctuates, but do not presume that an illness has already removed capacity. Discuss support and evidence for the person’s own will with the solicitor. If a statutory will may be required urgently, seek legal advice promptly and explain the medical and procedural urgency to the court. A family instruction or private report does not authorise execution on the person’s behalf.
Clarify the legal route with the solicitor before commissioning evidence. Identify whether the question is capacity for the person’s own will or the Mental Capacity Act question in a proposed statutory-will application. Supply the records and proposed provisions, agree the opinion’s scope and follow the current court guidance. The court, rather than the assessor or family, determines a statutory-will application.
Keep ordinary testamentary capacity under Banks v Goodfellow distinct from the Mental Capacity Act jurisdiction and best-interests decision for a statutory will. Seek a clearly scoped opinion and the correct legal advice; a report should not be presented as deciding the route or authorising a will by itself.
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.
For a testamentary capacity assessment, the key materials are the draft or proposed will, previous wills, a broad estate summary and relevant medical records. For a statutory will application, the court additionally requires the Court of Protection forms, evidence about best interests, details of those who might expect to benefit and the proposed will itself.
Obtain legal advice on the intended route and evidence before significant costs are incurred. A report for ordinary testamentary capacity may need further analysis or a separate COP3 for a statutory-will application. Capacity evidence, best-interests evidence and the court’s eventual decision have different roles.
The related pages below explain connected decisions, evidence requirements and legal processes.
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.
A GOOD PLACE TO START
Tell us what is happening and what you need help with. We will listen, explain the options and help you find the right starting point.