Testamentary Mental Capacity Assessments – Protecting Your Will and Final Wishes
At Nellie Supports, we provide independent testamentary capacity assessments that meet the Banks v Goodfellow legal standard — the only test recognised by the courts in England and Wales for will-making decisions.
Whether you are a solicitor following the Golden Rule, a will writer seeking extra assurance, or a family wanting to protect a loved one’s wishes, our experienced assessors deliver clear, court-ready reports — nationwide, from £495 + VAT.
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Members of Our Team
What Is Testamentary Capacity?
Testamentary capacity refers to a person’s legal ability to make or amend a valid will. This is assessed using the principles established in Banks v Goodfellow (1870). According to the test:
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The individual must understand that they are making a will and the effect of doing so.
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They must have a general awareness of the nature and extent of their estate.
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They must be able to recognise and consider those who might have a moral claim to benefit from their estate (even if they ultimately choose not to include them).
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Their decision must not be the result of a mental disorder that distorts their judgment.
The Golden Rule encourages solicitors to obtain a specialist assessment of capacity where there is any doubt, especially if the testator is elderly, seriously ill, or the will is significantly different from previous ones. This helps protect the will from future disputes or challenges in court.
The Legal Position – Banks v Goodfellow as the Sole Test
In Leonard v Leonard [2024], the High Court reaffirmed that the common law test established in Banks v Goodfellow (1870) remains the sole legal test for assessing testamentary capacity. The Mental Capacity Act 2005 does not apply to decisions about making or amending a will.
In clinical practice, professionals may sometimes refer to the MCA’s functional criteria (understand, retain, use or weigh, communicate) as a supplementary tool to structure their findings. This is not a legal requirement and must not be presented as an alternative test. Rather, it serves to ensure that reports are clear, comprehensive, and accessible to the court and other parties.
When You Might Need a Testamentary Capacity Assessment
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The person has dementia, brain injury, or significant mental illness.
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They appear confused, forgetful, or unable to explain their wishes clearly.
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The will involves an unusual or unexpected change.
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There is family conflict or a high chance of the will being challenged.
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You need documented evidence to protect against claims of undue influence.
Our Assessment Tiers
Standard Testamentary Capacity Assessment – £495 + VAT
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Single visit (in-person or secure video)
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Banks v Goodfellow criteria applied in full
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MOCA cognitive screening if needed
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CPR35-compliant report within 5–10 working days
Advanced Testamentary Capacity Assessment – from £895 + VAT
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For large estates, family disputes, suspected undue influence, or rapid cognitive decline
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Two visits: cognitive & vulnerability testing + capacity interview
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MOCA + financial vulnerability tools + psychometric battery
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CPR35-compliant report with Psychometric Summary appendix
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Delivered in 10–14 working days (expedite available)
When, Who & How Much – Your Testamentary Capacity Questions Answered
We know that arranging a testamentary assessment can feel overwhelming, especially if you’re new to the process. To make things simpler, we’ve pulled together the three key things most people want to know straight away — when you’ll need a testamentary assessment, who can complete it, and what it costs.
Is A Formal Diagnosis Required?
No Requirement for a Formal Diagnosis in Testamentary Capacity Assessments
No—there is no legal requirement for a formal medical diagnosis when assessing testamentary capacity.
The courts are concerned with the person’s decision-making ability, not whether they have a labelled condition. Many people may lack capacity due to temporary factors (e.g. delirium, confusion, stress) or subtle cognitive decline, without ever receiving a diagnosis.
Likewise, a diagnosis alone does not prove incapacity. Someone with dementia, for example, may still have capacity to make a will if they can meet the legal test at the time.
Assessments are based on a person’s abilities in the moment, not just their medical history.
Solicitors and families often request capacity assessments even when no diagnosis is present, particularly to:
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Reduce the risk of the will being challenged later.
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Follow best legal practice (e.g. the Golden Rule).
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Ensure the person’s wishes are clearly supported by contemporaneous expert evidence.
Legal and Procedural Clarity
Professionals such as solicitors, financial advisors, and court-appointed deputies often seek testamentary capacity assessments to ensure they meet legal and procedural obligations. While the legal test for capacity is established under Banks v Goodfellow, there are broader professional duties at play.
A formal assessment can help ensure:
Compliance with the Golden Rule: Advising medical input when a will is made by an elderly or seriously ill person.
Demonstrable due process: Protecting against future allegations of negligence, coercion, or undue influence.
Evidential protection: If the will is contested, contemporaneous capacity evidence can carry significant weight.
Regulatory compliance: Solicitors are professionally required to act in their client’s best interests, and an assessment may be critical in fulfilling that duty.
These safeguards are not about questioning a person’s ability unnecessarily but about protecting the individual’s wishes and ensuring procedural integrity for everyone involved.
Case Law Support
The courts have consistently highlighted the importance of independent capacity evidence, particularly in cases where wills are later contested. Key decisions include:
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Kenward v Adams (1975) – This case introduced the Golden Rule, recommending a medical assessment where a will is made by an elderly or ill person. While not binding, courts often expect this to be followed in practice.
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Sharp v Adam [2006] EWCA Civ 449 – The Court of Appeal upheld a finding of incapacity where the testator suffered from a progressive neurological condition. The lack of contemporaneous medical evidence was central to the dispute.
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Re Key [2010] EWHC 408 (Ch) – A widower executed a new will shortly after his wife’s death. Despite no formal diagnosis, the court found his bereavement had impaired his capacity. The solicitor’s failure to obtain medical evidence was criticised, reinforcing the importance of an independent assessment even in cases of temporary vulnerability.
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Re Clitheroe [2021] EWHC 1102 (Ch) – This high-profile case involved a dispute over a will alleged to have been written under the influence of grief and mental illness. The judge reaffirmed that Banks v Goodfellow is the correct legal test and stressed the importance of reliable expert evidence in determining capacity.
Together, these cases highlight a recurring theme: professionals who obtain capacity assessments protect both the validity of the will and themselves from future challeng
Two Services, One Gold Standard
Every situation deserves the gold-standard evidence—but not every case requires the same depth of investigation. That’s why we offer two equally rigorous options, each designed for a different level of risk.
Mental Capacity Assessment
Advanced Mental Capacity Assessment
Our flagship one-visit service for straightforward, decision-specific matters such as routine wills, Lasting Powers of Attorney, property transactions or day-to-day health-and-welfare choices. A registered assessor applies the MCA 2005 two-stage test, adding a MoCA cognitive screen whenever helpful. You receive a clear, CPR 35-compliant report within 5–10 working days—fast, court-ready, and accepted by solicitors nationwide.
Our Mental Capacity Assessments start at just £496.00
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 at Visit 1 and the formal capacity interview at Visit 2. The result is a CPR 35-compliant report plus a plain-English Psychometric Summary that quantifies cognitive, emotional and vulnerability factors—extra armour when a decision may be challenged.
Factor | Mental Capacity Assessment (MCA) | Advanced Mental Capacity Assessment (AMCA) |
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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.
Initial enquiry & triage
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.
Initial enquiry & triage
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.
Initial enquiry & triage
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.
Areas we cover
We provide testamentary capacity assessments across England and Wales, either in person or via secure video link. Our assessors regularly work in London, Manchester, Birmingham, Leeds, Cardiff, and surrounding areas, as well as more remote towns and rural communities.
Because decisions about wills often overlap with other areas of mental capacity law, we also support clients with related services, including:
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Capacity to Manage Finances – ensuring someone understands their financial circumstances when disposing of assets in a will.
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COP3 Mental Capacity Assessments – required for Court of Protection deputyship applications, often relevant when executors or attorneys are appointed.
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Capacity to Grant a Lasting Power of Attorney – allowing individuals to appoint trusted attorneys while they still have capacity.
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Capacity for Property Transactions – essential where property forms a major part of an estate.
Wherever you are, Nellie Supports delivers the same MCA 2005–compliant, CPR 35–compliant reports, providing solicitors, families, and the courts with robust evidence that helps protect wishes and minimise the risk of future disputes.
Case Study: Navigating GP Refusal to Secure a Timely COP3 Assessment
Mrs H demonstrated an excellent grasp of the fact that she was making a will and what that would mean after her death. She could describe, in broad terms, the nature and value of her estate, listing her property, savings, and personal possessions.
She identified both of her children and discussed their roles in her life. When asked about her reasoning, she gave a clear and consistent explanation, her daughter had been a constant presence, providing daily care, while her son had built his own life in Canada and played no active role in her wellbeing. Mrs H expressed affection for her son, stating that the token gift was intended as a gesture of goodwill, but felt strongly that her daughter should benefit from the estate in recognition of her dedication.
Our CPR35-compliant report documented these findings in detail, linking each to the relevant limb of the Banks v Goodfellow test. We recorded the absence of any mental disorder or undue influence that could distort decision-making, and explained how her reasoning was both logical and consistent with her values.
Months later, after Mrs H’s peaceful passing, her will was read. As anticipated, her son chose to contest it, alleging she had not fully understood the consequences of her decision. His solicitor formally requested evidence of capacity. Upon reviewing our comprehensive assessment, including the structured Banks v Goodfellow analysis, MOCA results, and clear reasoning in Mrs H’s own words, they advised their client there were no legal grounds to proceed. The challenge was withdrawn before reaching court, saving all parties considerable time, cost, and emotional strain.
Most importantly, Mrs H’s final wishes were honoured exactly as she intended, ensuring her daughter’s years of care were recognised and avoiding the public, stressful, and expensive process of contested probate. |
Mrs H demonstrated an excellent grasp of the fact that she was making a will and what that would mean after her death. She could describe, in broad terms, the nature and value of her estate, listing her property, savings, and personal possessions.
She identified both of her children and discussed their roles in her life. When asked about her reasoning, she gave a clear and consistent explanation, her daughter had been a constant presence, providing daily care, while her son had built his own life in Canada and played no active role in her wellbeing. Mrs H expressed affection for her son, stating that the token gift was intended as a gesture of goodwill, but felt strongly that her daughter should benefit from the estate in recognition of her dedication.
Our CPR35-compliant report documented these findings in detail, linking each to the relevant limb of the Banks v Goodfellow test. We recorded the absence of any mental disorder or undue influence that could distort decision-making, and explained how her reasoning was both logical and consistent with her values.
Months later, after Mrs H’s peaceful passing, her will was read. As anticipated, her son chose to contest it, alleging she had not fully understood the consequences of her decision. His solicitor formally requested evidence of capacity. Upon reviewing our comprehensive assessment, including the structured Banks v Goodfellow analysis, MOCA results, and clear reasoning in Mrs H’s own words, they advised their client there were no legal grounds to proceed. The challenge was withdrawn before reaching court, saving all parties considerable time, cost, and emotional strain.
Most importantly, Mrs H’s final wishes were honoured exactly as she intended, ensuring her daughter’s years of care were recognised and avoiding the public, stressful, and expensive process of contested probate.
Why Choose Nellie Supports?
Choosing the right professionals to assess mental capacity is vital. At Nellie Supports, we combine expertise, empathy, and efficiency to make the process as smooth as possible. Our multidisciplinary team includes registered social workers, nurses, and specialists who bring decades of combined experience in capacity law and practice. Every assessment is conducted with compassion and clarity, always tailored to the person’s unique circumstances.
Experience peace of mind with our comprehensive social work services at Nellie Supports. Our team of registered and experienced professionals is dedicated to providing exceptional care and support. From mental capacity assessments to a wide range of social work services—such as EHCP appeals, life expectancy reports, and ongoing consultancy—our experts ensure accurate evaluations, personalised guidance, and the highest standards of practice.
We understand how important these decisions are, whether you’re planning for the future or responding to urgent legal requirements. That’s why our reports are consistently prepared to the highest standards, fully compliant with the Mental Capacity Act 2005, and accepted by courts and solicitors across England and Wales.
With a 4.9-star rating from clients nationwide, prompt response times, and a commitment to clear communication at every step, Nellie Supports is trusted by families, deputies, and professionals alike.
