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Mental Capacity Assessment
Testamentary Capacity Assessment
A testamentary capacity assessment is an independent assessment of whether a person has the mental capacity to make or amend a valid Will under the common law test in Banks v Goodfellow (1870). Nellie Supports carries out these assessments for solicitors, will writers, deputies and families across England and Wales, with contemporaneous, defensible, CPR Part 35 compliant reporting.
Independent Banks v Goodfellow reports for solicitors, will writers and families where a Will may later be questioned.
At a glance
Decision
Making or changing a will
Legal framework
Banks v Goodfellow (1870)
Format
Usually a home visit; remote assessment is available where appropriate
Report
CPR 35-compliant Banks v Goodfellow-specific report, peer reviewed before issue
Coverage
England and Wales
£600 + VAT
Standard fee, stated before instruction
5 working days
Turnaround from assessment visit
England and Wales
Nationwide coverage
CPR Part 35 compliant
Court-ready reporting
Plain-English explanation
What is a mental capacity assessment?
A mental capacity assessment is a decision-specific and time-specific process used to determine whether a person can make a particular decision for themselves. Under the Mental Capacity Act 2005, the assessor considers whether the person can understand, retain, use or weigh the relevant information, and communicate their decision. A person can only be found to lack capacity where an impairment of, or disturbance in, the functioning of the mind or brain causes their inability to decide. It is not a general test of intelligence, memory or diagnosis, and every practicable step must first be taken to support the person to make the decision.
For a will, the courts apply the common law test in Banks v Goodfellow rather than the Mental Capacity Act test. The assessment is built around that test and the specific will the person intends to make.
Capacity can differ between decisions. A person may be able to make a straightforward will leaving everything to one person while being unable to weigh a complex estate involving trusts, business assets or competing claims.
An unwise decision is not the same as lacking capacity
A person is entitled to leave their estate as they wish, including in a way their family finds surprising or unfair. The issue is whether the person can make the relevant decision, not whether others agree with it.
Common situations
When you may need a testamentary capacity assessment
A testamentary capacity assessment is usually needed where there is any realistic risk that a Will could later be questioned or challenged. This often arises where there are concerns about cognitive impairment, significant changes to a Will, or complex family dynamics. Obtaining contemporaneous evidence of capacity at the time the Will is made can prevent uncertainty and reduce the likelihood of future disputes.
This commonly arises where there is a diagnosis affecting memory or cognition, a new Will significantly changes previous arrangements, family members may question decisions, there are concerns about undue influence or pressure, the estate is high-value or complex, or a solicitor recommends following the Golden Rule.
The golden rule applies
A solicitor wants a contemporaneous capacity assessment alongside the will, in line with the golden rule.
Age, illness or diagnosis
The person is elderly, seriously unwell or has a diagnosis that could later be used to question the will.
A significant change to an earlier will
The new will departs materially from a previous one, including where someone is being left out.
A challenge is anticipated
There is family conflict, or a real prospect that the will will be contested after death.
Concerns about influence
There are concerns that another person is pressuring or unduly influencing the testator.
Hospital or care setting
The will is being made in hospital, a hospice or a care home, where scrutiny after death is more likely.
Decision-specific content
What this assessment covers
This assessment addresses the person's capacity to make a will. Testamentary capacity is governed by the common law test set out in Banks v Goodfellow (1870) LR 5 QB 549, which the courts have confirmed remains the test for a will made during the person's lifetime, in Walker v Badmin [2014] EWHC 71 (Ch) and James v James [2018] EWHC 43 (Ch). The assessment is decision-specific and addresses the actual will in contemplation. The information relevant to making a will typically includes:
The nature of making a will and what it does, including that it takes effect on death
The extent of what they own and are able to leave, in broad terms rather than to the penny
Who might reasonably expect to benefit, and the claims they ought to consider
The effect of including or leaving out any particular person
The broad effect of the will as a whole, including any trust, gift or condition it contains
That a will can be changed or revoked at any time while they still have capacity to do so
The fourth limb is a matter of judgement, not information
Banks v Goodfellow also asks whether any disorder of the mind is poisoning the person's affections or perverting their sense of what is right. That is a clinical judgement for the assessor rather than a piece of information for the person to understand, and it is where a properly evidenced assessment earns its value.
1
The four elements of testamentary capacity
Testamentary capacity is governed by the common law test in Banks v Goodfellow (1870), not the Mental Capacity Act 2005. Applied to the specific Will in question, the four-limb test asks whether the person can:
Understand the nature and effect of making a Will
Understand the extent of the estate being disposed of
Appreciate the claims of those who might expect to benefit
Be free from any disorder of the mind that influences how the estate is left
2
How the evidence supports the conclusion
Testamentary capacity is a legal test, not a purely medical one. A diagnosis does not decide the question on its own, and medical evidence is not always necessary. What matters is structured reasoning that applies each limb of the test to the actual Will in front of the person, producing contemporaneous evidence a solicitor, and if required a court, can rely on.
Key authority: Banks v Goodfellow (1870) LR 5 QB 549. Reports are prepared to CPR Part 35 standards where expert evidence applies.
For the framework in full, read our guide: Banks v Goodfellow and the test for making a will.
Legal framework
The Banks v Goodfellow test
Initial enquiry and triage
We confirm the situation, identify the specific decision to be assessed, and provide a clear quote. We also advise whether a standard or enhanced assessment is most appropriate.
Quotation and booking
We provide a clear, upfront quotation based on the circumstances of the case, so you know exactly what is involved before proceeding.
Assessment appointment
A qualified assessor usually carries out a home visit and completes a decision-specific mental capacity assessment. The assessment can also be completed remotely where appropriate. Any travel is agreed before booking.
Report preparation and peer review
The assessor prepares a CPR 35-compliant report applying the Banks v Goodfellow test to the specific testamentary decision. The report is peer reviewed before issue.
Secure delivery
Your completed CPR 35-compliant report is returned securely by email, usually within 5 working days of the assessment visit, with reasonable minor amendments or clarification available after delivery.
What happens next
Our process, step by step
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 in the person's real circumstances. For a testamentary capacity assessment this typically means reviewing:
Medical records
GP summaries, hospital letters and any information about diagnosis or treatment that bears on decision-making.
The draft will and any earlier wills
The instructions the person has given, and how the new will compares with what came before.
Information about the estate
A broad picture of property, savings, investments and any business interests the will would dispose of.
Previous assessments
Earlier capacity assessments, cognitive testing or social care assessments, where these exist.
Care and support records
Care plans and daily notes that describe the person's presentation and any fluctuation over time.
Accounts from people who know the person
Observations from family, friends and professionals about the person's relationships and stated wishes.
Deliverable
Inside a Nellie Supports report
Every report follows a structure a court, solicitor or professional can scrutinise: evidence, reasoning and conclusion in a traceable line, linked directly to the legal test.
Instruction and the specific Will decision assessed
Documents reviewed, including the draft or current Will where available
The Banks v Goodfellow test and the relevant information
Assessment method and practicable support provided
Findings and observations
Consideration of undue influence and vulnerability
Reasoning and professional opinion
Limitations, declarations and appendices
Assessment option | Suitable for | What is included |
|---|---|---|
Standard Assessment | Most testamentary capacity questions | home visit in most cases, or remote assessment where appropriate; testamentary capacity assessment applying Banks v Goodfellow; CPR 35-compliant Banks v Goodfellow-specific report; peer review; if the Will is signed at the assessment visit, witnessing the signature is included at no additional cost, subject to conditions; secure delivery within 5 working days of the assessment visit |
Enhanced Assessment (EMCA) | Contested, high-value or high-risk matters | home visit in most cases, or remote assessment where appropriate; testamentary capacity assessment applying Banks v Goodfellow; CPR 35-compliant Banks v Goodfellow-specific report; peer review; enhanced multi-stage assessment where required; if the Will is signed at the assessment visit, witnessing the signature is included at no additional cost, subject to conditions; full documentation usually within 2 to 3 weeks of the appointments |
Court-specific instruction | Court of Protection or other proceedings | home visit in most cases, or remote assessment where appropriate; testamentary capacity assessment applying Banks v Goodfellow; CPR 35-compliant Banks v Goodfellow-specific report; peer review; report structured for the court or solicitor's instruction; if the Will is signed at the assessment visit, witnessing the signature is included at no additional cost, subject to conditions; additional requirements 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:
Standard Assessment
£600 + VAT
- Single assessment appointment
- Banks v Goodfellow test applied in full
- Optional MoCA cognitive screening
- CPR Part 35 compliant report
Suitable for most straightforward Wills.
Enhanced Assessment (EMCA)
£3,500 + VAT
- Two-stage assessment process
- Extended psychometric testing (MoCA plus additional tools)
- Financial vulnerability and decision-making analysis
- Emotional and psychological screening
- Detailed psychometric appendix included
- CPR 35-compliant Banks v Goodfellow-specific report
- If the Will is signed at the assessment visit, witnessing the signature is included at no additional cost, subject to conditions
Designed for contested, high-value or high-risk Wills.
Transparent pricing
Standard or Enhanced Assessment, which is right?
We offer two levels of testamentary capacity assessments, matched to the complexity of the situation and the level of legal risk. For most Wills, a standard assessment provides clear, proportionate and defensible evidence. Where the risk of challenge or scrutiny is higher, a more detailed approach is appropriate.
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 your report is delivered within 5 working days of the assessment visit, in a form solicitors, will writers and the courts can rely on.
For professionals
A permanent, employed multidisciplinary team, not an ad hoc associate or referral-panel model: 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 and structured for scrutiny, with reports relied on in the Court of Protection, the Family Court and the Court of Appeal.
Provider evidence
Why choose Nellie Supports for your mental capacity 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
Banks v Goodfellow expertise
Applied clearly and consistently to the specific Will, not as a general opinion.
CPR Part 35 compliant reports
Structured, legally literate reporting suitable for court and contentious probate.
Straightforward, complex family and contested cases
Experience across both routine Wills and high-risk, disputed matters.
Undue influence and vulnerability
We evidence whether the Will genuinely reflects the person's own wishes.
Decision-specific, not general
Structured assessments tied to the actual decision, not a general impression.
Employed, not outsourced
A permanent full-time multidisciplinary team, not an ad hoc panel of associates.
The situation
A solicitor instructed Nellie Supports in relation to Mrs H, who was preparing a new Will involving a substantial estate valued at over £4 million. Mrs H wished to exclude one of her adult sons, citing long-standing estrangement, and there was a strong likelihood the Will would be contested after her death.
Why an enhanced assessment
The solicitor recognised that a standard testamentary capacity assessment might not withstand the inevitable legal challenge, and instructed an Enhanced Mental Capacity Assessment so the evidence was both clinically rigorous and legally robust.
What the assessment involved
We began with a detailed history call, reviewing Mrs H's medical background, family dynamics and previous will-making. The enhanced process then brought together a decision-specific assessment applying the Banks v Goodfellow test, a structured enquiry into vulnerability and any undue influence, and targeted psychometric input, so the final opinion rested on a broad and defensible evidence base.
Why it mattered
High-value Wills that exclude a close relative are among the most likely to be challenged. A detailed evidential picture, gathered at the time the Will is made, is what allows that evidence to stand up if the Will is later contested.
Details have been changed to protect confidentiality and shared with consent.
How this works in practice
Frequently asked questions
Testamentary capacity assessment FAQs
What is the Banks v Goodfellow test?
It is the common law test for whether someone can make a valid Will. The person must understand the nature and effect of making a Will, understand the extent of their estate, appreciate the claims of those who might expect to benefit, and be free from any disorder of the mind that influences how the estate is left.
Do I need a medical professional for the assessment?
Not necessarily. Medical evidence can be relevant, but testamentary capacity is a legal test, not a purely clinical one. What matters is that the assessment applies the Banks v Goodfellow criteria to the specific Will with structured reasoning that can withstand scrutiny. Our assessors are registered social workers experienced in capacity assessment, and we draw on cognitive screening where it adds weight.
Can someone make a Will if they have dementia or memory problems?
Yes, in many cases. A diagnosis does not automatically mean a person lacks capacity. The question is whether they can understand and make the specific decision at the time the Will is made. Capacity can fluctuate, and each situation is assessed on its own facts.
How do you assess for undue influence?
Undue influence is not decided by a single test, but by considering the wider context. We explore relationships, dependency, vulnerability and the consistency of the person's decision-making, alongside their ability to explain their own reasoning. This helps evidence whether the decision is genuinely their own.
What is the difference between a standard and an enhanced assessment?
A standard assessment is a single, decision-specific assessment suitable for most Wills. An Enhanced Mental Capacity Assessment (EMCA) is for higher-risk or contested cases, adding psychometric testing, financial vulnerability analysis and a two-stage process.
What happens if the person is found to lack capacity?
They cannot make or amend a valid Will themselves. In those circumstances it may be appropriate to apply to the Court of Protection for a statutory Will, where the court decides what the Will should say based on the person's best interests.
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.
The legal test explained, limb by limb
The decision, the test and who assesses it
What solicitors should instruct and provide
Evidencing that the Will reflects the person's own wishes
When a statutory Will is the right route
Capacity evidence for blended families, estrangement, unequal provision and wills likely to be challenged.
Supporting guidance
Guides and expert insights on testamentary capacity
Independent, decision-specific assessment of capacity to manage money, property and financial affairs.
Where the question is making an LPA, not day-to-day finances.
For Court of Protection deputyship applications.
Other assessment types
Discuss the instruction
Arrange your testamentary capacity assessment
Tell us about the Will and the circumstances and we will confirm whether a standard or enhanced assessment is right, the fee, and the earliest appointment.
Written by Ben Slater, Founder and Managing Director, Nellie Supports. Read our editorial policy.