# Undue Influence and Testamentary Capacity Source: https://www.nelliesupports.com/guides/undue-influence-and-testamentary-capacity-assessments Canonical: https://www.nelliesupports.com/guides/undue-influence-and-testamentary-capacity-assessments Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-07-19 # Undue influence and testamentary capacity assessments Testamentary capacity and undue influence are distinct legal issues. A capacity opinion can record relevant observations, but a disputed claim of undue influence is for the court. ## 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) ## 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 Testamentary capacity and undue influence are distinct legal issues. A capacity opinion can record relevant observations, but a disputed claim of undue influence is for the court. 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/undue-influence-and-testamentary-capacity-assessments) - [Overview](https://www.nelliesupports.com/guides/undue-influence-and-testamentary-capacity-assessments) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/undue-influence-and-testamentary-capacity-assessments) - [Related Pages](https://www.nelliesupports.com/guides/undue-influence-and-testamentary-capacity-assessments) A will may be questioned for lack of testamentary capacity, undue influence or other validity issues. Banks v Goodfellow concerns capacity for the will; undue influence concerns coercion overcoming the testator’s free will. A person with capacity can be coerced. A capacity assessor can document a private account and relevant observations, but cannot guarantee that influence will be proved, disproved or prevented. ## Capacity and undue influence are different questions Testamentary capacity asks whether the person has the ability to make the will decision. Undue influence concerns whether the person’s free decision-making has been overborne by pressure or coercion. The two issues can overlap in evidence, but they should not be treated as the same legal question. ## Capacity and undue influence are different questions Testamentary capacity asks whether the person could make the will, applying Banks v Goodfellow. Undue influence asks whether the will, however capacitously made, reflects coercion rather than the testator's own free judgement. A person with full capacity can be unduly influenced, and a person free of any pressure can lack capacity. The two questions are assessed differently and challenged differently in probate, and an assessment that conflates them weakens the evidence on both. ## What the assessor can and cannot decide The assessor can give an opinion within their expertise on testamentary capacity and document observed or reported concerns, clearly identifying the source and limits. A contested undue-influence claim is ultimately a legal question for the court. Do not label a person’s relative as coercive on the basis of a risk feature or capacity interview alone. ## Common risk features Risk features may include isolation, dependence on a beneficiary, fear of withdrawal of care, sudden changes to a will, exclusion of close relatives, secrecy, controlling behaviour, restricted access to professional advice, recent bereavement, cognitive decline or a beneficiary arranging and managing the assessment. ## Assessment conditions should reduce pressure The assessment should normally take place in private, with care taken over who arranges the appointment, who provides information, who is present, how the person communicates and whether they can explain their own wishes without prompting. Any departure from this should be recorded and explained. ## How to record the person’s own reasoning The report should capture the person’s own explanation for the proposed will, including why certain people are included, excluded or treated differently. The assessor should consider whether the explanation appears to be understood, retained and weighed by the person or simply repeated from someone else. ## When enhanced assessment is safer Enhanced assessment may be safer where there is family conflict, a large estate, a new beneficiary, late-life changes, cognitive impairment, dependence on one relative, alleged coercion, communication barriers or a risk that the will is likely to be challenged after death. ## What a report should say about limitations If the assessor has not seen earlier wills, full estate information, medical records or solicitor notes, the report should say so. If the person was not assessed privately or if information came mainly from a beneficiary, that limitation should also be explained. ## Key takeaway Undue influence concerns make testamentary capacity assessment more delicate, not impossible. The safest report separates capacity from influence, records risk factors carefully and explains how the person’s own understanding and reasoning were tested. ## Frequently asked questions ### Is undue influence the same as lack of testamentary capacity? No. A person may have testamentary capacity but still be subject to undue influence. A person may also lack capacity without any undue influence. The assessment should keep the two questions separate while recognising that some evidence may be relevant to both. ### Can a testamentary assessment identify undue influence concerns? Yes. A careful assessment can identify concerns such as pressure, dependency, inconsistent explanations, inability to speak privately, fear of a beneficiary or instructions that appear to be controlled by someone else. Those concerns should be recorded clearly and neutrally. ### Should the proposed beneficiary be present? Usually not during the substantive assessment, especially where undue influence is suspected. The person should be able to explain their wishes privately. If anyone else is present, the report should explain why and how this may have affected the assessment.What evidence helps where undue influence is alleged?Helpful evidence may include previous wills, solicitor notes, medical records, care records, communication records, family history, evidence of dependence, details of who arranged the will, who gave instructions and whether the person had independent advice. ## Related mental capacity assessment pages The related pages below explain connected decisions, evidence requirements and legal processes. ### Testamentary Capacity Assessment ### What is testamentary capacity? ### Who can conduct a testamentary assessment? ### 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 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