Mental Capacity Assessment

Statutory Will Mental Capacity Assessment Package

A statutory will assessment package is a coordinated set of assessments and reports used to support an application to the Court of Protection for a statutory will, where a person cannot make or amend a Will for themselves. It brings together a testamentary capacity assessment, care needs and costs evidence, a life expectancy opinion and COP3 completion where required, so the court can understand both decision-making ability and wider circumstances.

Court-ready statutory will evidence for solicitors, deputies and families across England and Wales.

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At a glance

Decision

Making or amending a Will

Legal framework

Banks v Goodfellow and the Mental Capacity Act 2005

Format

Usually a home visit; remote assessment is available where appropriate

Report

CPR 35-compliant report, peer reviewed before issue

Coverage

England and Wales

£600 + VAT

Package fee, stated before instruction

2 to 3 weeks

Typical turnaround

England and Wales

Nationwide coverage

Court of Protection

Court-ready evidence package

What it is

When it is needed

Relevant information

Legal test

Process

The report

Fees

Case study

FAQs

Plain-English explanation

What is a statutory will?

A statutory Will is a Will made on a person's behalf by order of the Court of Protection, where that person lacks the capacity to make or amend a Will themselves. The court is asked to authorise the Will under the Mental Capacity Act 2005 and decides on the basis of the person's best interests, taking into account what they would be likely to do if they were able to make a Will for themselves. The application therefore turns on evidence, and the first question is always whether the person has testamentary capacity, applying the Banks v Goodfellow test.

Testamentary capacity is decision-specific and time-specific. A person may manage day-to-day decisions and still lack the capacity to make a Will, or lack capacity in other areas and still be able to make one. It has to be assessed on its own terms, in relation to the Will actually in question.

Where the assessment finds the person does have testamentary capacity, a statutory will application is not the right route and they can be supported to make a Will in the ordinary way. Where it finds they do not, the assessment and the wider evidence package give the court what it needs to consider the application.

An unwise Will is not the same as lacking capacity

A person is entitled to leave their estate in a way that others find surprising, unfair or simply unwise. The question is whether they can make the decision, not whether anyone agrees with it. What matters is whether a disorder of the mind is shaping the disposition, not whether the disposition is one others would have chosen.

Common situations

When you may need a statutory will package

A statutory will package is usually needed where there is concern that a person can no longer make or amend a Will for themselves, and the Court of Protection will need clear evidence about capacity, care needs, likely future costs and life expectancy before the application can be considered.

This often arises where someone has dementia, a brain injury, a progressive illness or another condition affecting decision-making, and there is a need to understand both their testamentary capacity and the wider practical and financial context of the case. It is particularly helpful where a solicitor or family wants to avoid gaps in the evidence and put forward a complete, joined-up package.

Court of Protection application

A solicitor, deputy or family member needs to apply for a Will to be authorised on the person's behalf, and the court requires evidence before it can consider the application.

No Will in place

The person has never made a Will and, without one, their estate would pass under the intestacy rules in a way that may not reflect their circumstances or what they would have wanted.

An existing Will is out of date

Circumstances have changed significantly since the Will was made, through marriage, divorce, the death of a beneficiary, a damages award or a change in the size of the estate.

A condition affecting decision-making

The person has dementia, a brain injury, a learning disability or a progressive illness, and there is real doubt about whether they can make or amend a Will.

Concerns about a recent Will

A Will has been made or changed recently and there are concerns about capacity, undue influence or the reasons behind the change.

Care needs and costs are relevant

The court needs to understand the person's care needs, projected costs and likely life expectancy alongside the capacity evidence.

Decision-specific content

What this assessment covers

This assessment addresses the person's capacity to make or amend a Will. It is decision-specific and time-specific: the assessor tests the actual Will in question, not a general impression of the person. The test applied is the one set out in Banks v Goodfellow, and the assessment considers whether the person can understand, retain, use and weigh the information relevant to making that Will. The relevant information typically includes:

The nature of making a Will and what it does, including that it takes effect on death and can be changed while they have capacity

The extent of what they own, in broad terms, including property, savings, investments, debts and anything already held in trust

The people who might expect to benefit, and the claims those people may have on the estate

The effect of including someone, leaving someone out, or dividing the estate in a particular way

Who depends on them, and any obligations they may wish to take into account

That a Will can be disputed after death, and what that could mean for the people left behind

The fourth limb: a disorder of the mind

Banks v Goodfellow also requires that no disorder of the mind poisons the person's affections, perverts their sense of right, or prevents the exercise of their natural faculties. A person can appear to understand every point above and still lack testamentary capacity if a fixed or delusional belief is shaping how they wish to leave their estate.

The evidence for a statutory will application

A statutory will application asks the Court of Protection to authorise a will under the Mental Capacity Act 2005 for someone who lacks capacity to make that decision themselves. The application needs evidence of capacity and of the proposed will’s place in the person’s best interests:

Whether the person lacks capacity to make the will decision under the Mental Capacity Act 2005

Whether authorising a statutory Will is in the person's best interests under the Mental Capacity Act 2005

The person’s past and present wishes and feelings, beliefs and values

Their relationships and their current and future needs

The court’s best interests decision

A finding that the person lacks capacity does not itself decide what the will should say. The court considers the relevant circumstances and the person’s past and present wishes and feelings, beliefs and values, alongside the other evidence. The report separates the capacity opinion from evidence relevant to the court’s best interests decision.

Framework: Mental Capacity Act 2005 ss 1, 4, 16 and 18; Court of Protection forms COP1, COP1C and COP3; Practice Direction 9E.

For the framework in full, read our guide: testamentary capacity versus statutory will applications.

Legal framework

The legal framework for statutory wills

Initial enquiry and triage

We gather the key details, explain how the statutory will package works, and identify which reports are needed for the case.

Quotation and booking

Once we understand the scope, we provide a clear quotation including VAT and any travel costs, and arrange the assessment appointments as quickly as possible.

Assessment visits

We attend to complete the testamentary capacity assessment and the social care needs assessment. Where needed, a second visit completes or clarifies the care evidence and care planning.

Report preparation and peer review

The assessor prepares a decision-specific CPR 35-compliant report setting out the evidence considered, the person's responses, the legal test, the reasoning and the conclusion. The report is peer reviewed before issue.

Peer review and secure delivery

The reports are checked for quality and consistency, then delivered securely for solicitor and Court of Protection use, with clarification available after delivery.

What happens next

Our statutory will process

Supported decision-making

How we support decision-making

The Mental Capacity Act 2005 requires that no one is treated as unable to make a decision unless all practicable steps to help them have been taken without success. That support is built into every assessment:

Plain language and real examples

Decisions are explained using the person's own circumstances and the decision actually in front of them, rather than abstract scenarios.

The right time and place

Appointments are arranged for when the person functions best, at home, in a care setting, in hospital or remotely.

A familiar person nearby

A relative, friend or carer can be close at hand where that reassures, while the assessment itself remains independent.

Communication adjustments

More time, information broken into stages, and written notes or aids where they help the person express a view.

Evidence base

Evidence we review

With consent, the assessor grounds the assessment and the wider package in the person's real circumstances. For a statutory will case this typically means reviewing:

Medical records

GP summaries, hospital letters, imaging and any information about diagnosis, prognosis or treatment that bears on decision-making and on life expectancy.

Any existing Will and earlier drafts

Previous Wills, codicils, attendance notes and drafting instructions, which show how the person's intentions have developed over time.

Estate and financial information

The broad shape of the estate: property, savings, investments, debts and anything held in trust or already promised.

Legal documents

Any Lasting Power of Attorney, deputyship order or Court of Protection order relevant to the person's affairs.

Care and support records

Care plans and daily notes describing how the person presents day to day, which also inform the care needs assessment and costs review.

Accounts from people who know the person

Observations from family, friends and professionals about relationships, and about how and when the person's views have been expressed.

The evidence package

Inside the evidence package

The strength of this service is in how the reports work together. Each is structured so the Court of Protection and the legal team can follow the evidence and rely on it.

Instruction and the statutory will application in question

Testamentary capacity assessment applying the Banks v Goodfellow test

Social care needs assessment and current circumstances

Care plan setting out how needs should be met

Costs review of current and projected care costs

Life expectancy opinion prepared from medical and care evidence

COP3 completion where required

Best interests context and Court of Protection considerations

Assessment option	Suitable for	What is included
COP3 Part B Only	Where only formal capacity evidence is required	home visit in most cases, or remote assessment where appropriate; decision-specific mental capacity assessment; CPR 35-compliant report; peer review; secure delivery within 5 working days of the assessment visit
Statutory Will Package	The full evidence package for a statutory will application	home visit in most cases, or remote assessment where appropriate; decision-specific mental capacity assessment; CPR 35-compliant report; peer review; secure delivery within 5 working days of the assessment visit
Court-specific instruction	Court of Protection or other proceedings	home visit in most cases, or remote assessment where appropriate; decision-specific mental capacity assessment; CPR 35-compliant report; peer review; report structured around the court or solicitor's specific instruction; any additional directions confirmed before instruction

Who we work with

For solicitors, deputies and other professionals

Instruction is straightforward and the evidential standard is consistent whichever decision is being assessed:

Scope confirmed in writing

The decisions to be assessed, the fee and the timescale are confirmed in writing before instruction.

A traceable evidential line

Evidence, analysis and conclusion are set out in a structure a court, bank or public body can scrutinise.

Peer review as standard

A second qualified professional reviews every report before it leaves the practice.

Follow-up clarification

Clarification for instructing parties is included after the report is delivered.

COP3 Part B Only

£600 + VAT

Formal COP3 Part B capacity evidence
Decision-specific testamentary capacity assessment
Structured for Court of Protection use

Where only COP3 capacity evidence is required.

Statutory Will Package

£2,800 + VAT

Testamentary capacity assessment
Social care needs assessment and care plan
Costs review
Life expectancy opinion report
COP3 completion where required

The complete, joined-up evidence package for a statutory will application.

Transparent pricing

COP3 Part B only, or the full package?

Some cases need only formal COP3 capacity evidence, while others need the full joined-up package the court expects for a statutory will application. We offer both.

For families

A clear fee, stated before instruction and confirmed in writing, with VAT and any travel set out up front. The assessment is arranged around the person, at home, in a care setting, in hospital or remotely, and the full evidence package is typically delivered within 2 to 3 weeks in a form solicitors and the Court of Protection can rely on.

For professionals

A permanent, employed multidisciplinary team, not an ad hoc associate, contractor or referral-panel model: Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Testamentary capacity, care needs and costs, life expectancy and COP3 completion are produced as one coordinated package, peer reviewed by a second qualified professional and structured for scrutiny.

Provider evidence

Why choose Nellie Supports for a statutory will assessment

England and Wales' largest identified specialist private social work and mental capacity assessment practice, with over 11,000 formal assessments and reports completed by a permanent full-time multidisciplinary team.

Why families, solicitors and deputies choose Nellie Supports

Prepared for Court of Protection use

Clear reasoning linked to the relevant legal framework and the specific issues in the case.

A joined-up package

Testamentary capacity, care needs, projected costs, COP3 where required and life expectancy in one coordinated service.

MoCA-accredited assessors

Cognitive screening available where appropriate at no extra cost.

Life expectancy by a forensic scientist

Prepared by our forensic scientist, registered with the Royal Anthropological Institute, using medical evidence and recognised data sources.

Employed, not outsourced

A permanent full-time team, not ad hoc associates, so assessors bring regular practical experience.

Peer reviewed

Every case is reviewed by a second qualified professional before delivery.

The situation

Our client was an older woman living with dementia. She had no Will in place and two adult children. She told us she wished to leave her entire estate to her son, who had had no contact with her since he left home at eighteen, some forty years earlier. Her solicitor instructed Nellie Supports to assess her testamentary capacity before any Will was made.

What the assessment found

Applying the Banks v Goodfellow test, the assessment identified fixed, delusional beliefs about her daughter that were directly shaping how she wished to leave her estate. Her wish to exclude the daughter who remained in her life, in favour of a son she had not seen for four decades, was driven by those beliefs rather than by a settled, rational decision. Because a disorder of the mind was influencing the disposition in this way, the assessment concluded that she did not have the testamentary capacity to make the Will she was proposing.

The outcome

With clear, reasoned evidence that the client lacked testamentary capacity, the family were able, through their solicitors, to apply to the Court of Protection for a statutory Will. That route allowed her estate to be dealt with properly and in her best interests, rather than on the basis of a Will shaped by delusional belief.

This is an illustrative example, drawn from the common features of the statutory will cases we assess. It does not describe any individual client.

How this works in practice

Frequently asked questions

Statutory will FAQs

Do you need a COP3 for a statutory will application?

Often, yes. A COP3 provides formal capacity evidence for the Court of Protection, but statutory will cases usually require additional evidence alongside it, including care, cost and life expectancy information.

Is a life expectancy report always needed?

Not in every case, but it is commonly required where future care needs, prognosis or projected costs are relevant to the application and the court needs a clearer picture of the person's likely circumstances over time.

What is the difference between testamentary capacity and general capacity?

Testamentary capacity is specific to making or changing a Will. A person may lack capacity in other areas, such as managing finances, but still retain the ability to make a Will, so it must always be assessed separately.

Does this service include drafting the will itself?

No. This service produces the assessment and expert evidence package that supports the application. The legal drafting of the proposed statutory Will and the court application documents usually sit with the instructing solicitor or applicant.

Can a statutory will application be urgent?

Yes. You can apply for an emergency decision on a statutory Will if the person only has a short time to live. In urgent cases, raise timing at the outset so the evidential work can be targeted appropriately.

Will the court automatically approve a statutory will if the person lacks capacity?

No. Lack of capacity is only one part of the picture. The court must consider what the person would do if able to make a Will themselves, alongside their beliefs, values and the way they made decisions in the past.

What if the assessment does not reach the conclusion we hoped for?

Our assessments are independent, and that independence is what gives the report its value. We do not begin from a preferred answer. We assess the specific decision on its merits and record the reasoning, whatever the conclusion. A report that only ever confirmed what was hoped for would carry no weight with a solicitor, the Court of Protection or anyone else relying on it.

Where do you cover?

Assessments are carried out across England and Wales, at home, in care settings, in hospital or remotely where appropriate. Travel is charged at £40 per hour and confirmed before booking.

Who will carry out the assessment?

A registered professional from our permanent, employed team, which includes Social Work England and Social Care Wales registered social workers and a Chartered Psychologist (BPS). Every report is peer reviewed by a second qualified professional before delivery.