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Testamentary Capacity Assessment


"Ensuring Legitimacy and Peace of Mind in Testamentary Matters"

What law applies to Testamentary Capacity?


Most decisions we make on a daily basis are often governed by the Mental Capacity Act (2005). One decision that doesn't fall under the Mental Capacity Act, however, is that of testamentary capacity, your capacity to create a will. 


Instead, determining testamentary mental capacity relies on the case law of Banks vs Goodfellow (1870), which uses a distinct set of criteria. When a solicitor or will writer requests an assessment of testamentary mental capacity, it typically aims to safeguard the legitimacy of decision-making during will creation.


Adherence to the "golden rule" from Kenward v Adams (1975) is crucial, necessitating the expertise of a qualified mental capacity assessor when the testator (the person making the will) is of advanced age or has experienced illness.

Grasping the nuances of testamentary mental capacity is essential within wills and estate planning, transcending mere legal formalities to ensure the testator's intentions are faithfully captured and legally recognised.

Who can assess testamentary capacity?

The Care Quality Commission (CQC) states, "Assessors can be anyone – for example, family members, a care worker, a care service manager, a nurse, a doctor or a social worker." 


That said, when it comes to testamentary capacity, the assessor should be qualified, experienced and have knowledge of the relevant case law to ensure that the testator's wishes are protected. 


Our team of Registered Social Workers at Nellie Supports complete these forensic testamentary capacity assessments daily, ensuring your peace of mind. 

What is testamentary capacity?

Testamentary mental capacity is about being mentally capable and understanding enough to make a will. It means you know what you own, who might have a right or expectation to inherit from you, and how your decisions will impact these people. It's about being clear-headed when deciding who gets your possessions after you're gone

The Role of Mental Capacity Assessments in Will-Making

Conducting a robust mental capacity assessment is crucial for confirming that the testator has the necessary testamentary mental capacity to create a binding will. Such an assessment plays a pivotal role in several aspects:

  • Ensuring Will Validity

To be considered sound, a will must be authored by someone with a clear understanding of its contents and implications. A mental capacity assessment certifies that the testator possesses the cognitive functionality to appreciate the purpose and consequences of the will.

  • Minimising Legal Disputes

A will that lacks a proper testamentary capacity verification is prone to legal challenges and disputes. By carrying out an assessment, the likelihood of contention regarding the will's authenticity is significantly reduced.

  • Safeguarding Vulnerable Individuals

Vulnerable testators, particularly older adults or those with severe health conditions, could be unduly influenced or coerced. An assessment helps ensure that the testator is acting out of free will in the will-creation process.

  • Adhering to Legal Criteria

Legal entities may invoke the "Golden Rule" among other case laws to confirm that a medical expert has appropriately evaluated the testator's capacity. Compliance with these legal benchmarks is essential for sustaining the will's legitimacy in any legal context.

Maximising the Integrity of Will-Making with Expert Assessments

By facilitating a thorough testamentary capacity assessment, Nellie Supports aims to preserve the testator's intentions, meet legal standards, and provide assurance to both the testator and the heirs. Our seasoned Social Workers, well-versed in the "Golden Rule," perform comprehensive evaluations, which are instrumental in upholding the sanctity of the will-making process and protecting all interested parties.

purple yellow fairy
Son and mother happy smiling COP3 Assessment

Thorough and Professional Testamentary Capacity Assessments


At Nellie Supports, our testamentary capacity assessment process is carefully designed to ensure accuracy, professionalism, and compliance with legal standards.

Our experienced Social Workers conduct a comprehensive evaluation of the testator's mental capacity, using standardised tools and techniques to assess their cognitive abilities, understanding, and decision-making capacity relevant to creating a will. We also review the testator's medical records if available to gain further insights into their health condition and relevant medical history.

The assessment is conducted in person, preferably at the testator's home or a comfortable environment, to ensure ease of communication and reduce stress. We apply legal standards and relevant case laws like Banks v Goodfellow (1870), to ensure a thorough evaluation according to legal requirements.

Our Social Workers document the entire assessment process meticulously, including the testator's responses, observations, and conclusions. The comprehensive report serves as a crucial legal document for potential challenges or court proceedings.

We handle all assessments with utmost confidentiality and sensitivity, approaching the process with empathy to ensure the testator feels comfortable throughout.

After completing the assessment, we provide a detailed and professionally written report promptly, summarising the findings, evaluating the testator's capacity, and adhering to legal standards. At Nellie Supports, we prioritise accuracy, transparency, and respect for the testator's rights and wishes. Our testamentary capacity assessments are conducted with the highest level of professionalism and expertise, ensuring the validity and integrity of the testator's will-making process.

Husband and wife elderly COP3 Assessment

CASE STUDY: Safeguarding Your Will: A Testamentary Capacity Case Study

Following a significant brain injury due to a car crash years back, Gregg found his life transformed. With new love blossoming through his marriage to Emelia, he faced the critical task of planning his estate. Intent on providing for both Emelia and his children from a previous union, Gregg recognised the importance of updating his will to reflect his current circumstances.

In the midst of familial tensions, particularly with his ex-spouse Louise and sibling Peter casting doubt on his mental soundness, Gregg felt the weight of their scrutiny. The possibility of Louise or Peter challenging his testamentary intentions loomed large, spurred on by Peter's insinuations about Gregg's mental capacity.

To fortify his position, Gregg sought the expertise of a professional will writer, who recommended a robust testamentary mental capacity assessment. This step was crucial in establishing Gregg's cognitive fitness to make a will and to deter any future legal objections.

At Nellie Supports, our skilled Social Workers specialise in independent social work practice, delivering person-centred care directly to our clients' homes. We provided Gregg with a meticulous testamentary mental capacity assessment, ensuring compliance with the pivotal case law of Banks Vs Goodfellow 1870. The assessment included a detailed Montreal cognitive evaluation, culminating in expert witness reports that affirmed Gregg's mental faculties.

Though Gregg initially perceived the mental capacity assessment as an inconvenience, he swiftly grasped its fundamental role in protecting his testamentary wishes. The comprehensive expert witness reports equipped him with the assurance needed to secure his estate planning, offering him serenity as he looked ahead.

Need to make an appointment regarding testamentary mental capacity?
Contact our team.

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Experience peace of mind with our comprehensive social work services at Nellie Supports. Our team of registered professionals, including qualified and experienced Social Workers, is dedicated to providing exceptional care and support. From mental capacity assessments to a wide range of social work services, our experts ensure accurate evaluations, personalised guidance, and the highest standards of practice. Trust in our registered professionals for a reassuring and trusted partnership on your care journey, backed by their expertise in both social work services and mental capacity assessments.

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