GUIDES
Solicitors, medical practitioners and other suitably experienced professionals can contribute testamentary-capacity evidence. The Golden Rule specifically recommends medical involvement in relevant cases.
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
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Solicitors, medical practitioners and other suitably experienced professionals can contribute testamentary-capacity evidence. The Golden Rule specifically recommends medical involvement in relevant cases. The sections below explain the evidence, practical steps and limits of the assessment or process.
Solicitors taking will instructions, medical practitioners and other appropriately experienced professionals may contribute evidence of testamentary capacity. The opinion must address Banks v Goodfellow and the relevant will-making dates. The Golden Rule specifically recommends medical examination and a will witnessed and approved by a medical practitioner for elderly or seriously ill testators; it is not satisfied merely by using any professional assessor. The court weighs the evidence as a whole.
Testamentary capacity may be considered by a solicitor taking will instructions, a medical practitioner, a suitably experienced mental capacity assessor or another appropriately qualified professional. What matters is whether the person conducting or contributing to the assessment understands the legal test, the person’s circumstances, the relevant evidence and the purpose for which the opinion is needed.
Whoever conducts a testamentary assessment must be able to apply the Banks v Goodfellow test, not merely the general Mental Capacity Act framework. That means assessing whether the person understands the nature and effect of making a will, holds a broad picture of their estate and can comprehend and appreciate the claims of those they ought to consider, free of a disorder of the mind distorting their judgement. An assessor unfamiliar with the testamentary test, however senior in their own field, will produce evidence aimed at the wrong target.
A solicitor usually advises on the will, takes instructions and considers whether a capacity opinion is needed. A specialist assessor may provide an independent opinion on capacity, particularly where there is diagnosis, vulnerability, dispute, fluctuating presentation, communication difficulty or suspected pressure. In complex cases, the roles should be clearly defined in the letter of instruction.
A useful testamentary assessment should be completed by someone who can apply the relevant legal framework, identify the correct information, review documents, communicate effectively with the person and write a reasoned report. The assessor should also recognise limitations and recommend legal or medical input where the case requires it.
Specialist assessment is usually more important where the estate is valuable or complex, the person has cognitive impairment, there are allegations of coercion, the will departs from previous wishes, close relatives are excluded, or the opinion may later be relied on in contentious probate proceedings.
The assessor should be independent of the proposed beneficiaries, should understand who is instructing them and should record any potential conflict. Where family members disagree, independence and transparent evidence handling are particularly important.
A good instruction should state whether the assessment is prospective, contemporaneous or retrospective, whether a new will or codicil is being considered, what estate information is available, who may benefit, who may be excluded and whether concerns about undue influence or coercion exist.
A testamentary opinion should identify the proposed or past will, relevant dates, Banks v Goodfellow, sources and support, the person’s account and observations, and analysis of each limb with limitations. Do not substitute a generic Mental Capacity Act functional checklist. Where proceedings are intended, confirm the expert-evidence rules, permission and instruction with the solicitor.
The right person to conduct a testamentary assessment depends on the risk, purpose and complexity of the case. For low-risk cases, a solicitor’s careful attendance note may be enough. For contested, high-value, complex or vulnerable cases, an independent specialist assessment is often safer.
A GP may be involved, especially where medical history is relevant, but a brief medical letter may not be enough in a disputed will case. The key issue is whether the opinion applies the correct testamentary capacity test and explains the reasoning clearly.
A suitably experienced social worker or mental capacity assessor may be able to provide a structured capacity opinion, especially where social, family, communication and vulnerability factors are central. The instruction should make clear the legal test, documents to review and intended use of the report.
The solicitor may assess whether they can take instructions and may identify capacity concerns, but they may also seek an independent capacity opinion where the case is complex, disputed, medically uncertain or likely to be challenged. What qualifications should I look for? Look for experience in mental capacity assessment, familiarity with testamentary capacity, strong report writing, evidence review skills, independence, ability to manage communication needs and understanding of risk factors such as coercion, vulnerability and fluctuating cognition.
The related pages below explain connected decisions, evidence requirements and legal processes.
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