GUIDES
Will-capacity opinions may be obtained before execution, at the time, or retrospectively. These describe timing and scope rather than separate legal tests or mandatory service tiers.
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.
Will-capacity opinions may be obtained before execution, at the time, or retrospectively. These describe timing and scope rather than separate legal tests or mandatory service tiers. The sections below explain the evidence, practical steps and limits of the assessment or process.
The main timing descriptions are prospective, contemporaneous and retrospective. A prospective opinion is obtained before execution, a contemporaneous opinion records capacity near instructions or signing, and a retrospective opinion examines a past date. “Enhanced” or “complex” describes the agreed scope of work rather than a separate statutory category. Choose the evidence and timing for the actual will, person and legal purpose.
The right type of testamentary assessment depends on timing, purpose, risk and evidence. A person making a straightforward will may need a different level of assessment from someone changing a will in later life, excluding close relatives, managing a complex estate or already involved in a dispute.
An opinion about a person’s own will should address all limbs of Banks v Goodfellow: the will’s nature and effects, broad extent of property, appreciation of relevant claims and any disorder influencing the disposition in the legally relevant way. Timing and evidence may differ between instructions, but the test is not replaced by a commercial assessment label. A statutory-will application engages a separate Mental Capacity Act framework.
A prospective assessment is completed before the will is signed or changed. This is often the best option where there are known capacity concerns, diagnosis, communication difficulties, high-value assets, family conflict, pressure concerns or a departure from previous wills.
A contemporaneous assessment is closely linked to the will-making appointment and may sit alongside solicitor attendance notes. It can be useful where the solicitor needs independent support at the time instructions are being taken and the will is being executed.
A retrospective assessment is completed after the relevant event, often after death, where a will is being challenged or questioned. It relies on historical evidence such as medical records, solicitor notes, previous wills, witness accounts, care records and correspondence. It cannot recreate the assessment that should ideally have happened at the time.
Where pressure or coercion is suspected, the assessment should be arranged with particular care. The person should be able to speak privately, the assessor should record who was present, and the report should explain how influence risk was considered without pretending to decide the legal issue of undue influence.
Complex estate assessments may involve trusts, businesses, overseas assets, agricultural property, blended families, dependent relatives or vulnerable beneficiaries. The assessment should identify what information the person needed to understand in broad terms and how that information was explained.
The right assessment type should be chosen before booking. Consider whether the decision is live or historical, whether the will is likely to be disputed, whether medical evidence is needed, whether the estate is complex and whether a solicitor or court may later rely on the report.
The best type of testamentary assessment is the one that matches the timing, risk and intended use of the opinion. A simple assessment may be enough for some cases. Complex, disputed or high-risk cases need a more detailed and carefully scoped approach.
Prospective, contemporaneous and retrospective describe when an opinion is obtained in relation to the will-making event. “Enhanced”, “complex” and similar terms usually describe additional agreed work, rather than distinct legal tests. Pressure concerns require careful conditions and separate legal consideration; a service label does not decide undue influence.
Where concerns are known before the will is signed, a prospective or contemporaneous assessment is usually preferable because it allows direct assessment of the person at the relevant time and better recording of support, understanding and reasoning.
A retrospective opinion may help where capacity at a past will-making date is genuinely in dispute and relevant records survive. “Enhanced” generally means that additional work has been agreed, such as further records, communication support or meetings. Ask what that work adds and why it is necessary; the label alone establishes neither a legal requirement nor report quality.
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.