Testamentary Mental Capacity Assessments: Banks v Goodfellow Compliant, Court-Ready Reports
When someone you care about is making or has made a will, their mental capacity at that moment matters legally, emotionally, and financially. Not just for compliance, but for protecting their wishes, their autonomy, and their legacy.
A testamentary mental capacity assessment evaluates whether a person has the legal and mental ability to make a valid will under the Banks v Goodfellow test. This includes understanding the nature of making a will, the extent of their property, the claims others might have on their estate, and the disposition they are making. It's about ensuring their final wishes are legally sound and genuinely their own.
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What is a Testamentary Mental Capacity Assessment?
A testamentary mental capacity assessment is an independent evaluation conducted by a qualified professional to determine whether a person has the mental capacity to make or change their will. The assessment applies the Banks v Goodfellow test, which has been the legal standard for testamentary capacity in England and Wales since 1870.
The Banks v Goodfellow test requires that the testator:
• Understands the nature of making a will and its effects
• Understands the extent of the property being disposed of
• Comprehends and appreciates the claims to which they ought to give effect
• Has no disorder of the mind that perverts their sense of right or prevents the exercise of natural faculties
Our testamentary mental capacity assessments thoroughly evaluate all four criteria, providing solicitors, will writers, and families with the contemporaneous evidence needed to protect the validity of a will and reduce the risk of future disputes.
When, Where, Who & How Much — Your Testamentary Capacity Questions Answered
Where Do We Conduct the Assessment?
We come to you wherever is most comfortable and appropriate.
Face-to-Face testamentary capacity assessments (95% of our cases):
At home: The most common choice. We conduct the assessment in familiar surroundings where the person feels comfortable and secure. In a care home or nursing facility: We work with care staff to find a quiet, private space at a time when the person is at their cognitive optimum. In hospital: If the person is medically stable and free from acute illness, we can conduct the assessment in a hospital setting. At our office: Available if preferred, though less common for testamentary capacity assessments.
Remote Video Assessments: Available where appropriate, though we recommend face-to-face for most testamentary assessments. Video assessments work best when the person is comfortable with technology, they have a quiet, private space for the call, their communication needs can be met remotely, or face-to-face is genuinely impractical (e.g., geographic distance, urgent timeline).
Why face-to-face matters: Testamentary capacity assessments often involve discussing complex information about assets, family relationships, and the testator's wishes. Face-to-face allows us to observe non-verbal communication, adapt our approach in real-time, and ensure the person is not disadvantaged by the assessment method.
Nationwide coverage: We operate across England and Wales with no geographic restrictions.
When You'll Need a Testamentary Mental Capacity Assessment
A testamentary mental capacity assessment provides independent, court-ready evidence that a person understood the nature and effect of making or changing their will.
You should commission an assessment when:
A solicitor, executor, or family member questions whether the testator had capacity. There are concerns about undue influence, coercion, or cognitive impairment (dementia, stroke, delirium). A will was made or changed during ill health, hospitalisation, or cognitive decline. A new will significantly departs from previous intentions (disinheriting family, unexpected beneficiaries). There is risk of will disputes or contentious probate proceedings. An executor or professional deputy requires formal evidence before distributing an estate.
Why timing matters: Most solicitors and families contact us when concerns emerge—a will challenge is threatened, beneficiaries question the testator's state of mind, or safeguarding issues arise. The sooner you act, the sooner you can protect the will's validity and prevent costly disputes.
The legal foundation: The "golden rule" of testamentary capacity (established in Kenward v Adams, 1975) advises solicitors to have an elderly or seriously ill client's will assessed by a medical professional. This protects the will's validity by documenting the testator's understanding and minimizing the risk of legal challenges after their death.
Early assessment protects all parties - testators, beneficiaries, and legal professionals -by providing clear, defensible evidence of capacity.
Who Can Conduct It & What Makes Ours Different
Testamentary mental capacity assessments must be conducted by qualified professionals with expertise in mental capacity law and the Banks v Goodfellow test.
Our Full-Time Assessment Team: Registered social workers with specialist training in testamentary capacity law. Qualified psychologists with expertise in cognitive assessment. Best Interest Assessor (BIA) accredited professionals. MoCA (Montreal Cognitive Assessment) accredited assessors. Continuous professional development in mental capacity legislation and case law. Average 10+ years' experience conducting capacity assessments.
What Makes Our Reports Different: All reports are CPR Part 35 compliant. We apply the Banks v Goodfellow test alongside additional case law such as Key v Key. We consider evidence of undue influence and other relevant legal precedents to strengthen our reports. As MoCA accredited assessors, we can complete a psychometric assessment at no additional cost, which evidences the person's cognitive functioning on the day of the assessment.
What Solo Practitioners Can't Offer: Limited availability and long waiting times. No backup if the primary assessor is unavailable. No multidisciplinary support for complex cases. No established track record with courts. Risk of inconsistent methodology and quality. Often lack MoCA accreditation or access to psychometric tools.
What GPs Can't Offer: GPs are not trained in mental capacity law or the Banks v Goodfellow test. They lack the time and capacity to conduct thorough assessments. Their reports are often not court-ready or CPR Part 35-compliant. They cannot provide the specialist evidence courts require. Many GPs refuse to conduct capacity assessments due to liability concerns. They do not routinely apply case law such as Key v Key or assess for undue influence.
Proven Track Record: 6,000+ mental capacity assessments completed. 99% court acceptance rate. Zero successful challenges to our testamentary assessments in the past 3 years. Trusted by leading solicitors, will-writing firms, and probate practitioners nationwide. Member of BASW (British Association of Social Workers).
Cost & Pricing
We believe in straightforward pricing with no hidden fees.
Standard Testamentary Mental Capacity Assessment (Face-to-Face): £496 plus VAT, delivered within 10-14 days.
Video Assessment (Remote): £496 plus VAT, delivered within 7 days.
Complex or Dual-Decision Assessment: £707-£767 plus VAT, delivered within 10-14 days.
Travel Time (if applicable): £40 per hour.
What's Included: Pre-assessment consultation. Face-to-face or video assessment appointment. Detailed court-ready report meeting CPR Part 35 standards. Electronic delivery (PDF). Post-assessment support.
Payment Terms: Invoice issued upon booking. Payment due before report delivery. We accept bank transfer, credit/debit card, and payment from solicitors' client accounts.
B2B (solicitors) clients: 30 days post-delivery unless otherwise agreed.
Why Our Pricing Is Fair:
Expertise: Our assessors are registered social workers and psychologists with specialist training in testamentary capacity law and years of practical experience.
Quality: Every report is court-ready and CPR Part 35-compliant with a 99% court acceptance rate. Speed: 7-14 day turnaround compared to weeks or months waiting for NHS or local authority assessments. Independence: Our assessments are impartial and objective, not constrained by budget pressures or service backlogs.
Transparency: No hidden fees. What you see is what you pay.
Our Testamentary Mental Capacity Assessment Options
We provide two levels of testamentary capacity assessments, depending on the complexity of the case and the level of scrutiny required:
Mental Capacity Assessment
Advanced Mental Capacity Assessment
r flagship one-visit service for testamentary capacity assessments, determining whether you have the mental capacity to make or amend a valid will. A registered assessor applies the Banks v Goodfellow test, the legal standard for testamentary capacity. We add a Montreal Cognitive Assessment (MoCA) whenever helpful to strengthen your evidence. You receive a clear, CPR Part 35-compliant report within 5-10 working days—fast, court-ready, and accepted by solicitors nationwide.
Our Testamentary Mental Capacity Assessments start at just £495.00
Built on the same gold-standard foundations but engineered for higher-risk, contested or high-value scenarios- large estates, family conflict, suspected undue influence or rapid cognitive change. After a brief phone triage, we complete targeted psychometric tests (including Montreal Cognitive Assessment) at Visit 1 and the formal Banks v Goodfellow capacity interview at Visit 2. The result is a CPR Part 35-compliant report plus a plain-English Psychometric Summary that quantifies cognitive, emotional and vulnerability factors—extra armour when a Will may be challenged.
Mental Capacity Assessment (MCA) | Advanced Mental Capacity Assessment (AMCA) | |
|---|---|---|
Purpose | Standard capacity assessment for a clearly-defined decision (e.g. Will, LPA, property, health & welfare). | Flagship service for complex, high-risk or contested decisions where ordinary interview evidence may require additional supplementary evidence to create a more robust argument |
Ideal for | Most everyday legal or financial choices that still require formal capacity evidence. | Large estates, family conflict, suspected undue influence or exploitation, or any matter likely to be challenged. |
Risk factors addressed | General mental-capacity concerns; assessor escalates if red-flags appear. | Explicit focus on: financial vulnerability, undue influence, cognitive decline, behavioural risk, grief/anxiety impact and other “evidence-pillar” domains. |
Assessment structure | One visit – decision-specific capacity interview (plus optional MoCA if required and appropriate). | Telephone consultation → Visit 1: Psychometric testing → Visit 2: Capacity interview (3-step pathway, but two client visits). |
Psychometric testing | Montreal Cognitive Assessment completed as required and appropriate | Person-Centred battery: MoCA, Financial Vulnerability Assessment, Financial Decision Tracker and assessor-selected NovoPsych scales. |
Emotional / psychological screening | Not included. | Anxiety, grief, trauma and similar factors measured quantitatively so their real impact (or lack of it) is documented. |
Report & legal robustness | CPR35-compliant capacity report. | CPR35-compliant capacity report plus Psychometric Summary Appendix explaining every score in plain English. |
Cost | £496.00 | £995.00 |
The Legal Framework: Banks v Goodfellow and Testamentary Capacity Law
The Banks v Goodfellow case established the definitive test for testamentary capacity that remains the cornerstone of English and Welsh law today. In this landmark 1870 case, the court determined that for a person to have testamentary capacity, they must meet four key criteria at the time of making their will. Our testamentary mental capacity assessments meticulously evaluate each of these criteria to provide robust, legally defensible evidence of capacity. This ensures that wills are valid, reducing the risk of costly disputes and family conflict after death.
The Golden Rule
First established in Kenward v Adams (1975), the Golden Rule recommends that when a solicitor is instructed by an elderly or seriously ill testator, or where there are concerns about capacity, a medical opinion on testamentary capacity should be obtained at the time the will is executed.
Mental Capacity Act 2005 vs Common Law
While the Mental Capacity Act 2005 governs most capacity decisions, testamentary capacity is still primarily assessed under the common law Banks v Goodfellow test. This is because the Act's functional approach may set too low a threshold for the complex decision of making a will. Our assessors are expert in both frameworks and ensure that testamentary capacity assessments meet the higher common law standard while incorporating best practice from the Mental Capacity Act 2005.
Why Choose Nellie Supports?
We've completed over 6,000 mental capacity assessments nationwide. Our team has 50+ years of combined experience. We're the largest provider of mental capacity assessments in the UK, which means we understand the complexities, the legal requirements, and the human side of every testamentary capacity case.
What this means for you: You're working with specialists who've seen every scenario. We know what courts expect, what solicitors require, and what families need. Our experience defending wills against capacity challenges is unmatched in the private sector.
Every assessment is conducted by a registered social worker or qualified psychologist with specialist training in testamentary capacity law and the Banks v Goodfellow test. Our assessors hold Best Interest Assessor (BIA) qualifications and MoCA accreditation. They undertake ongoing CPD to stay current with case law (including Key v Key) and best practice.
Our wider team includes additional psychologists, SEND specialists, and a forensic scientist. For complex cases, we draw on this multidisciplinary expertise to ensure thorough, robust assessments.
What this means for you: You're not getting a generic service. You're getting expert knowledge from professionals who specialise in testamentary capacity assessments day in, day out.
Our reports meet the Civil Procedure Rules Part 35 standards for expert evidence. We apply the Banks v Goodfellow test alongside additional case law such as Key v Key. We consider evidence of undue influence and other relevant legal precedents to strengthen our reports. We have a 99% court acceptance rate. Solicitors, probate practitioners, and the courts routinely accept our assessments without question or request for clarification.
Every report includes background information, detailed assessment methodology, findings against the Banks v Goodfellow test, consideration of undue influence, and clear conclusions with recommendations. Written in plain English, accessible to courts, families, and professionals.
What this means for you: No delays. No challenges. No requests for further evidence. Your case progresses smoothly.
We operate across England and Wales with no geographic restrictions. We conduct 95% of our assessments face-to-face because this is often the most appropriate method to ensure the person is not disadvantaged. Remote video assessments are available where suitable.
What this means for you: We come to you. Home, care setting, hospital, or wherever the person is most comfortable. No need to travel. No logistical barriers.
We conduct assessments at the person's cognitive optimum: best time of day, comfortable environment, communication tailored to individual needs. We use non-verbal methods where appropriate. We explain everything in accessible language. We treat every person with dignity and respect.
Our elephant motif symbolises compassion, collaboration, empathy, and protection. These aren't just words. They're the values that guide every assessment.
What this means for you: The person being assessed feels heard, respected, and comfortable. Families feel supported. Professionals receive clear, compassionate reports that reflect the person's reality, not just a tick-box exercise.
We're not employed by the NHS, local authorities, or care providers. We're not constrained by budget pressures or service backlogs. Our only obligation is to provide an honest, thorough assessment. We're members of BASW (British Association of Social Workers) and the Financial Vulnerability Taskforce. We're professionally insured and GDPR compliant.
What this means for you: You can trust our findings. Courts trust our findings. Solicitors trust our findings. Our independence protects everyone involved.
Our Process – Step by Step
Initial enquiry & triage
Contact us by phone, email or using our website form. A senior coordinator responds the same working day to confirm the decision that needs assessing, provide a clear quotation (including VAT and mileage if applicable), and arrange a convenient assessment time.
Assessment Appointment
A qualified assessor meets the individual—at home, in hospital, or via secure video—to carry out the assessment. The conversation is gentle and decision-specific. If helpful, cognitive screening tools (such as the MoCA) may be used to support clinical insight.
Report Writing
The assessor prepares a clear, CPR Part 35-compliant report that links all findings to the relevant legal framework (e.g., Mental Capacity Act 2005, Care Act 2014). Every report is peer-reviewed by a second professional to ensure quality, neutrality and legal readiness.
Report Dispatch
You receive the report securely within 5–10 working days. Minor amendments are free within 14 days, and your assessor remains available to clarify the findings with legal teams, courts or healthcare professionals if required.
How We Helped Mrs H Protect Her Will When Family Questioned Her Capacity
Mrs H, an elderly woman with early-stage dementia, wished to update her will to reflect her changing family circumstances. Her solicitor recognised the potential for the new will to be challenged and, following the Golden Rule, recommended a testamentary mental capacity assessment.
The Challenge
Family members expressed concerns about Mrs H’s memory lapses and whether she truly understood the value of her estate and the impact of her decisions. Without independent evidence, there was a real risk the will could later be contested.
Our Solution
Nellie Supports arranged an assessment within 72 hours. A specialist assessor applied the Banks v Goodfellow test, adapting communication to Mrs H’s needs. The assessment carefully documented her ability to understand the purpose of a will, the extent of her assets, and the claims of her beneficiaries.
The Outcome
A detailed, CPR Part 35–compliant report was produced and peer-reviewed internally. The solicitor used this evidence to finalise Mrs H’s will with confidence. When the will was later questioned by relatives, the independent assessment protected it from challenge, ensuring her wishes were upheld.
Key Takeaway
Independent testamentary mental capacity assessments reduce the risk of costly legal disputes, safeguard vulnerable individuals, and give families and solicitors confidence that a will reflects true intentions.
What Our Clients Say
Used Nellie Supports to provide a Mental Capacity assessment on a close family member and the assessor was very professional & patient throughout and showed the necessary empathy when things took a difficult turn during the assessment.
Nick Prince
Efficient and well-organised service. The assessor was thorough, professional, empathetic and produced a comprehensive report within 24 hours of the interview. Excellent service all round.
David Laws
The Team at Nellie Supports are always helpful. Always providing advice and information where necessary. Prompt in responding with quotes. I always recommend to others within my organisation.
Ann-Marie (solicitor)
We also provide mental capacity assessments for other decisions including COP3 assessments and LPA capacity assessments. For complex cases requiring our advanced mental capacity assessment service provides comprehensive support.
Expert Insights into Testamentary Mental Capacity Reports
Explore our expert articles on testamentary mental capacity, including guidance on the Banks v Goodfellow test, common challenges in will disputes, and practical advice for solicitors, deputies, and families navigating contested estates.
Frequently Asked Questions
Your solicitor may suggest a testamentary capacity assessment for several reasons: if you have a diagnosis of dementia, Alzheimer's, brain injury, or other condition affecting cognition; if there's a significant time gap between your last Will and this new one; if your new Will is substantially different from your previous one; if family members have expressed concerns about your capacity; if you're making significant gifts that might be challenged; or if you're making a Will at an advanced age and want to protect it from future dispute. A professional assessment provides clear, documented evidence that you had capacity when you made your Will, protecting your wishes and preventing costly family disputes.
Testamentary capacity is assessed using the test established in the case Banks v Goodfellow (1870). Unlike other capacity assessments, the Mental Capacity Act 2005 does not apply to testamentary capacity. Instead, the common law test requires that you: understand the nature of making a Will; know the extent of your property and assets; understand who might reasonably expect to benefit from your estate; understand how your proposed Will disposes of your estate; and are free from any disorder of the mind that influences your decision to make the Will in the way you have. We assess all five elements to determine testamentary capacity.
The Golden Rule (established in Kenward v Adams, 1975) states that if a testator is suffering from a condition that might affect their testamentary capacity, a medical practitioner should examine them and certify their capacity before or after the Will is executed. The Golden Rule protects your Will from challenge by providing contemporaneous medical evidence of capacity at the time the Will was made. If your Will is made when you have a diagnosed condition affecting cognition, following the Golden Rule significantly strengthens your Will's legal standing. We provide Golden Rule-compliant assessments that meet this standard.
Yes. We need a copy of your new Will to understand what you're proposing and how it disposes of your estate. We also need your previous Will (if you have one) to assess whether there are significant changes that might indicate a change in capacity or potential undue influence. By comparing your old and new Wills, we can identify any major shifts in your intentions and assess whether these reflect your genuine wishes or potential concerns. Both documents are essential for a thorough, court-ready assessment.
The Banks v Goodfellow test requires that you understand the extent of your property and assets. We need to know your financial details—your property, savings, investments, income, liabilities, and major assets—to assess whether you truly understand what you own and how your Will disposes of it. This isn't about privacy concerns; it's about ensuring you have genuine understanding of your estate. Without this information, we cannot properly assess whether you meet the legal test for testamentary capacity.
Yes. You can have a trusted person present during the assessment for support—a family member, friend, or carer. However, they must remain silent and not influence your answers. The assessor needs to hear your own thoughts, understanding, and reasoning without interference. If someone is present and attempting to influence your responses, the assessment may be invalid. We encourage support but ensure the assessment remains independent and your voice is heard clearly.
Yes, absolutely. Having a diagnosis of dementia, brain injury, or other condition does not automatically mean you lack testamentary capacity. Capacity is assessed at the time you make your Will. Many people with dementia retain testamentary capacity, especially in the early stages. What matters is whether you understand the nature of making a Will, know your assets, understand who might benefit, and are free from disorder of mind influencing your decision at that specific moment. A professional testamentary capacity assessment can confirm you have capacity, protecting your Will from future challenge.
Yes. Each Will requires its own testamentary capacity assessment at the time that Will is made. Capacity can change over time, so an assessment from five years ago doesn't prove capacity today. If you're making a new Will, we recommend a new assessment to provide current, contemporaneous evidence of your capacity. This protects your new Will from challenge and ensures clear, up-to-date documentation of your testamentary capacity.
Undue influence occurs when someone exerts pressure on you to make a Will in their favour, against your genuine wishes. During the assessment, we observe your interactions with family members present, listen to your reasoning, and assess whether your decisions are genuinely yours or influenced by others. We ask detailed questions about who suggested changes to your Will and why. We also review medical records and background information. If we identify signs of undue influence, we document this clearly in our report. Courts take undue influence seriously, and our assessments protect against these claims.
Testamentary capacity uses a different legal test (Banks v Goodfellow common law) than other capacity assessments, which use the Mental Capacity Act 2005 two-stage test. Testamentary capacity is specifically about whether you can make a valid Will at a particular moment in time. Other capacity assessments (LPA, COP3, managing finances) assess capacity for ongoing decisions. The legal frameworks, standards, and evidence required are different. We specialise in testamentary capacity and understand these distinctions.
Yes, any assessment can be challenged, but a professional, thorough testamentary capacity assessment provides strong protection. Our assessments are peer-reviewed by a second qualified professional, conducted using the Banks v Goodfellow framework, and documented with clear reasoning and evidence. We have a 99% court acceptance rate.
When assessments are challenged, we reflect on the reason why, review our process, and amend our reports accordingly. This continuous improvement means our standard assessments now include: sections covering Principle 2 of the Mental Capacity Act; Key v Key (the impact of grief on decision-making); related health conditions; specific sections on undue influence; and full CPR Part 35-compliant reports with Montreal Cognitive Assessments to strengthen our evidence.
For high-value, high-risk estates, we also offer our Advanced Mental Capacity Assessment Service, which provides additional layers of rigour and protection against challenge. This enhanced service significantly strengthens the defensibility of your Will.
We understand that testamentary capacity assessments are often urgent—particularly when someone is seriously ill or when a Will needs to be executed quickly. We can arrange appointments within days in most cases. Your completed assessment report is delivered within 5-10 working days. If you need an urgent assessment, contact us immediately and we'll do everything we can to accommodate your timeline. We work with solicitors and families to meet tight deadlines.
Yes. Our testamentary capacity assessments are fully compliant with Banks v Goodfellow, the Golden Rule, and CPR Part 35 standards. We have a 99% court acceptance rate. Solicitors across England and Wales regularly instruct us for testamentary capacity assessments. Our reports are court-ready, peer-reviewed, and based on rigorous methodology. Solicitors trust our assessments because they know we follow the highest professional standards.
Testamentary capacity assessments are best conducted face-to-face so we can observe you, assess your communication, and review documents with you in person. However, in exceptional circumstances (serious illness, housebound, urgent timeline), we can conduct remote video assessments via Cliniko, our secure case management software. Remote assessments are legally compliant and court-approved, but we require a documented reason why face-to-face isn't possible. Face-to-face remains the gold standard for testamentary capacity assessment.
If the assessment identifies that you lack testamentary capacity, the Will cannot be executed. However, this doesn't mean your wishes are lost. We can discuss alternative options depending on your circumstances:
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Waiting to make the Will: If your lack of capacity is temporary (due to infection, medication side effects, or acute illness), capacity may return. We can reassess when circumstances change.
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Statutory Will Application: If you lack testamentary capacity, we can complete a COP3 Part B form at no additional cost for this specific decision. This allows your family to apply to the Court of Protection for a statutory will to be made on your behalf, protecting your wishes. If other decisions are also assessed (such as capacity to manage finances for deputyship), additional costs would apply for those separate decisions.
We support families through this difficult situation with compassion and practical guidance, exploring all available options.
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