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Testamentary Capacity Assessment
Independent, Banks v Goodfellow Compliant Reports for Wills and Probate
A testamentary capacity assessment is an independent, decision-specific assessment of whether a person has the mental capacity to make or amend a valid Will. It applies the common law test in Banks v Goodfellow (1870), which remains the legal standard for testamentary capacity in England and Wales, rather than the Mental Capacity Act 2005.
At Nellie Supports, we carry out these assessments for solicitors, will writers, deputies and families. Each report applies the four limbs of Banks v Goodfellow to the specific Will in question, sets out clear reasoning rather than a general impression, and is written to be CPR Part 35-compliant. The result is contemporaneous, defensible evidence designed to withstand scrutiny in contentious probate.
Whether you are drafting a Will, responding to concerns about a person's capacity, or protecting a client against future challenge, we provide fast assessments across England and Wales, with court-ready reporting and ongoing professional support.
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100% Coverage
We provide 100% coverage across England and Wales, making it easier for families, solicitors, deputies and professionals to access specialist assessments wherever they are needed. Our service is designed to be responsive, consistent and available nationally.
100+Years Experience
Our team brings together well over 100 years of combined professional experience across social work, mental capacity, safeguarding, care planning and specialist assessment practice. This depth of experience helps us approach each assessment with confidence, clarity and professional judgement.
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Rated 4.9 stars on Google, our reviews reflect the trust placed in us by families, solicitors, case managers and other professionals. We are proud to be recognised for clear communication, reliable support and high-quality assessment reports.
11,000+ Assessments and Reports
With over 11,000 assessments completed, we have extensive experience supporting a wide range of decision-specific needs. Our reports are structured, evidence-based and prepared with the practical requirements of families, professionals and legal settings in mind.
What is a testamentary capacity assessment?
A testamentary capacity assessment establishes whether a person can make or amend a valid Will at the specific time the Will is made. It is decision-specific and time-specific: the question is never whether someone "has capacity" in general, but whether they can make this particular decision, about this particular Will, on this particular occasion.
The assessment applies the common law test in Banks v Goodfellow (1870), which has four limbs: understanding the nature and effect of making a Will, understanding the extent of the estate, appreciating the claims of those who might expect to benefit, and being free from any disorder of the mind that influences how the estate is left.
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 the legal test to the actual Will in front of the person, producing contemporaneous evidence that a solicitor, and if required a court, can rely on.
What’s Included as Standard
Every Nellie Supports testamentary capacity assessment follows the full assessment process behind our wider mental capacity work, adapted specifically for Will-making and the Banks v Goodfellow test.
Home Visit or Video Call
We assess wherever suits the person, by home visit, in a care setting or hospital, or by secure video, depending on their needs and the circumstances of the Will.
Calm, Professional and Person-Centred Assessment.
The assessment is carried out as a respectful, structured conversation, with careful attention to the person's communication style, presentation, and any cognitive or emotional factors affecting decision-making.
Banks v Goodfellow, Applied to the Specific Will
We focus on the actual decision to make or amend this Will, applying each limb of the Banks v Goodfellow test in detail, rather than offering a general or diagnostic opinion about capacity.
MCA-Trained Assessors
Our assessors are registered social workers experienced in Mental Capacity Act work. Although a Will is governed by Banks v Goodfellow rather than the MCA, we use the Act's functional approach, understanding, retaining, using or weighing, and communicating, to structure the evidence clearly, without displacing the correct legal test.
Legally Structured and Defensible
Every report sets out transparent, structured reasoning that links the findings to the legal test, so the evidence can withstand scrutiny in contentious probate.
Montreal Cognitive Assessment (MoCA)
Where appropriate, we include a MoCA as supporting evidence. This is particularly useful where there is no formal diagnosis but objective evidence of cognitive functioning is still needed.
Consideration of Undue Influence and Vulnerability
We also consider indicators of undue influence, coercion or vulnerability, helping to evidence that the Will reflects the person's own wishes.
At the end of the service you receive a clear, structured report that applies the Banks v Goodfellow test and provides independent, contemporaneous evidence that solicitors, and if required the court, can rely on.
Testamentary Capacity Assessment Fees and Timescales
Standard Testamentary Mental Capacity Assessment
Enhanced Testamentary Mental Capacity Assessment
Travel time, where applicable
£600.00
£3500.00
£40.00per hour
5 to 10 Working Days
Please note that VAT and travel charges are not included in the prices shown. If timing is important, please let us know at the enquiry stage and we will advise on the earliest available appointment and quickest turnaround.
Standard or Enhances Assessment – Which Is Right?
We offer two levels of testamentary capacity assessment, 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.
A standard testamentary capacity assessment is a single, decision-specific assessment applying the Banks v Goodfellow test, supported where appropriate by cognitive screening. It suits the majority of cases, where the decision is clear, circumstances are stable, and there is no significant concern about dispute or undue influence.
An Enhanced Mental Capacity Assessment (EMCA) is designed for higher-risk situations: large or complex estates, family conflict, suspected undue influence, or any Will likely to be contested. It adds further layers of evidence, including psychometric testing, financial vulnerability analysis and a two-stage assessment process, to create a more robust and defensible evidential position.
Standard Assessment
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Single assessment appointment
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Banks v Goodfellow test applied in full
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Optional MoCA cognitive screening
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CPR Part 35-compliant report
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Suitable for most straightforward Wills
Enhanced Assessment (EMCA)
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Two-stage assessment process
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Extended psychometric testing (MoCA plus additional tools)
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Financial vulnerability and decision-making analysis
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Emotional and psychological screening
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Detailed psychometric appendix included
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Designed for contested, high-value or high-risk Wills
If you are unsure which level is right, our team can advise based on the specific circumstances and the level of risk involved.
Need Stronger Evidence for a Higher-Risk Will?
For high-value, contested or complex Wills, our Enhanced Mental Capacity Assessment provides additional evidential protection beyond a standard testamentary capacity assessment, including psychometric testing, financial vulnerability analysis and a two-stage process.
Why People Choose Nellie Supports for Testamentary Capacity Assessments
Choosing the right assessor matters. The strength of the evidence, the clarity of the reasoning, and how the legal test is applied can directly affect whether a Will is upheld or challenged. Our assessments are built not just to reach a conclusion, but to produce clear, defensible evidence that withstands scrutiny.
Testamentary capacity assessments are a core part of our work, not an occasional add-on. Our assessors apply the Banks v Goodfellow test in a structured, decision-specific way, supported by clinical insight where appropriate, considering not only cognitive functioning but also vulnerability, undue influence and the wider context in which the Will is being made.
With thousands of mental capacity assessments completed across England and Wales, our team brings a depth of experience that is difficult to replicate in isolated or one-off assessments. That consistency is what allows us to report reliably even in complex or high-risk cases.
What sets our assessments apart:
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Banks v Goodfellow expertise, applied clearly and consistently
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CPR Part 35-compliant reports suitable for legal scrutiny
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Experience across straightforward and contested cases
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Consideration of undue influence and vulnerability
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Structured, decision-specific assessments, not general opinions
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Nationwide service with consistent availability
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A permanent multidisciplinary team, not an ad hoc panel of associates
What Happens During the Assessment
Not all capacity assessments are equal. Reports that are vague, overly brief, or fail to apply the legal test properly can lead to:
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delays in the legal process
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increased risk of challenge
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additional cost for further evidence
A well-structured testamentary capacity assessment avoids this by providing clear, legally reasoned evidence from the outset. A typical assessment involves the following.
A testamentary assessment will usually involve:
A well-structured testamentary capacity assessment avoids this by providing clear, legally reasoned evidence from the outset. A typical assessment involves the following.
A structured, decision-specific conversation
The assessment is carried out as a calm, professional conversation focused on the person's ability to make or amend their Will. The assessor explores the Banks v Goodfellow criteria in a way adapted to the individual's communication style and needs.
Understanding the Will and its effect
The person is supported to explain, in their own words:
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what a Will is and what it does
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the nature and extent of their assets
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who they wish to benefit, and why
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any changes from a previous Will, and the reasons for them
This evidences not just recall, but reasoning and decision-making, which is the part that actually matters under Banks v Goodfellow.
Exploring wider factors
Where relevant, the assessor also considers:
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cognitive functioning and memory
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the impact of any diagnosis or impairment
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emotional factors such as grief, anxiety or pressure
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any indicators of undue influence or vulnerability
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Optional cognitive screening
Where appropriate, a tool such as the Montreal Cognitive Assessment (MoCA) provides additional objective evidence of cognitive functioning.
Clear, structured reporting
All findings are set out in a CPR Part 35-compliant report, with reasoning linked directly to the legal test, so the outcome is transparent, defensible and suitable for legal use.
Documents and information to prepare
You do not need to prepare anything formal before a testamentary capacity assessment. The process is guided and supportive, and the assessor adapts the conversation to the individual's needs and circumstances.
That said, having certain information to hand helps make the assessment as clear, efficient and accurate as possible, particularly where there are complexities around the Will, the assets or the family situation. It is useful, where available, to have:
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a copy of the current or draft Will
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details of any previous Wills or significant changes
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a general overview of the assets and estate, with no exact figures required
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information about family members or intended beneficiaries
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any relevant medical history or diagnoses
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details of the professionals involved, such as the solicitor or will writer
Where relevant, this lets the assessor build a fuller picture of the decision being made and provide clearer, better-supported evidence of capacity.
If any of this is not available, the assessment can still go ahead. We work with whatever information is to hand at the time.
What happens if the person lacks capacity?
If the assessment concludes that the person does not have testamentary capacity, that does not mean the process has failed. In many cases the assessment is commissioned precisely because there are concerns about capacity, and a clear, independent conclusion protects the individual and everyone involved.
A finding of no capacity can itself be an important safeguard. Where there are concerns about undue influence, pressure or vulnerability, the assessment helps ensure a Will is not created where the person cannot make that decision freely and with full understanding.
If a person lacks testamentary 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. We can support with that process: learn more about our statutory Will assessments.
Who This Assessment Is For
Our testamentary capacity assessment service is designed for individuals, families and professionals who need clear, independent evidence about whether someone can make or amend a valid Will.
This includes situations where there may be concerns about capacity, vulnerability, or the risk of future dispute. The assessment provides a structured application of the Banks v Goodfellow test, ensuring the decision is properly evidenced at the time it is made.
It is commonly used where there is a need to protect the validity of a Will and reduce the risk of challenge, particularly in complex or sensitive circumstances.
Our testamentary capacity assessments are typically commissioned by:
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individuals making or updating a Will
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families concerned about a relative’s capacity or vulnerability
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solicitors and will writers seeking clear, defensible evidence
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executors or professionals managing risk in estate planning
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professionals involved in disputes or contentious probate matters
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. In these situations, obtaining contemporaneous evidence of capacity can prevent uncertainty and reduce the likelihood of future disputes.
In practice, the assessment is used to create clear, independent evidence at the time the Will is made, rather than relying on retrospective opinion later.
This commonly arises where:
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there is a diagnosis affecting memory or cognition
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a new Will significantly changes previous arrangements
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family members may question decisions
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there are concerns about undue influence or pressure
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the estate is high-value or complex
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a solicitor recommends following the “Golden Rule”
What Is a Testamentary Capacity Assessment?
A testamentary capacity assessment is a decision-specific legal assessment that determines whether a person has the mental capacity to make or amend a valid Will.
Capacity for this decision is assessed under the common law test established in Banks v Goodfellow (1870). This requires consideration of the person’s understanding of the Will, their assets, and the claims of potential beneficiaries, as well as whether any mental impairment affects their decision-making.
It is not a general opinion about whether someone “has capacity.” It focuses specifically on whether they can make this particular decision at the time it needs to be made.
The Legal Test for Testamentary Capacity
A testamentary capacity assessment must apply the Banks v Goodfellow test to the specific decision of making or amending a Will.
In practice, this involves assessing whether the person can understand the nature of making a Will, the extent of their estate, and the claims of potential beneficiaries, and whether any disorder of the mind affects their ability to make decisions.
The question is not whether the person has a diagnosis or appears vulnerable. The question is whether they can make this specific decision with sufficient understanding and reasoning.
Why Decision-Specific Assessment Matters
Mental capacity is never assessed in general terms. It must always relate to the specific decision that needs to be made
For testamentary capacity, this means understanding the actual Will, the people involved, and the consequences of the decisions being made. A general impression of functioning is not enough to provide reliable legal evidence.
A strong assessment focuses on the real decision in front of the person, ensuring the evidence is relevant, clear, and legally meaningful.
What the Assessor Evaluates
A robust testamentary capacity assessment does more than reach a conclusion. It explains how that conclusion has been reached.
During the assessment, the assessor considers the person’s understanding of the Will, their ability to retain and weigh relevant information, their reasoning about beneficiaries, and whether any impairment or vulnerability affects decision-making.
This ensures the report provides clear, structured evidence, rather than relying on assumptions or general impressions.
Our Approach to the Assessment
At Nellie Supports, the assessment is carried out as a structured, supportive conversation, designed to help the person engage with the decision as fully as possible.
The approach is adapted to the individual’s needs, communication style, and any cognitive or emotional factors. The aim is not to test or catch the person out, but to support meaningful participation in the decision-making process.
The written report serves a different purpose - providing clear, evidence-based reasoning linked to the legal test, suitable for professional and legal use.
Testamentary Capacity Assessment FAQs
Common questions about testamentary capacity assessments, the Banks v Goodfellow test, and how our reports are prepared. If your question is not covered here, contact our team and we will be glad to help.
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 a testamentary capacity 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 and clinical evidence 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.
Will the assessment be stressful for the person?
No. It is carried out as a calm, supportive conversation, adapted to the person's communication style and needs. The aim is to help them engage with the decision as fully as possible, not to test or catch them out.
Do you need to see the Will itself?
Where possible, yes. Reviewing the draft or proposed Will lets the assessment be tied directly to the actual decision being made. The assessment can still proceed without it if necessary.
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.
How quickly can an assessment be arranged, and how soon is the report ready?
In most cases an assessment can be arranged within a few days, depending on location and availability. The report is typically delivered within ten working days of the assessment. If timing is critical, tell us at the enquiry stage and we will advise on the earliest appointment and fastest turnaround.
Will my solicitor accept your report?
Yes. Our reports are structured, clearly reasoned and aligned to the relevant legal framework, making them suitable for use by solicitors and, where required, for court.
Can a testamentary capacity assessment be challenged?
Any assessment can be scrutinised, particularly in contentious probate. A clear, well-reasoned report that properly applies the legal test significantly reduces the risk of a successful challenge.
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.
Why families, solicitors and deputies choose Nellie Supports
When a case is straightforward, many providers can offer a testamentary capacity assessment. When a case is complex, high-value or likely to be challenged, the quality of the assessment and the strength of the reasoning become critical.
Our work is built around decision-specific testamentary capacity assessments that apply the Banks v Goodfellow test in a clear, structured and legally meaningful way. These cases often combine legal risk, vulnerability, family dynamics and safeguarding concerns, so we focus not just on reaching a conclusion, but on showing clearly how that conclusion was reached.
Families choose us because we take time to understand the person, not just the Will. Professionals choose us because our reports are structured, legally literate and aligned to the realities of contested probate work. Solicitors choose us because we understand what makes an assessment more robust, more defensible and more useful where the validity of a Will may later be questioned.
Our assessors are part of a permanent, full-time multidisciplinary team, not an ad hoc panel of associates. Every case benefits from consistent experience, internal peer discussion and strong quality control. Where required, we draw on wider evidential work, including cognitive testing, vulnerability analysis and additional assessment input, so the final opinion rests on a broader evidential foundation.
In higher-risk cases, the strength of the reasoning is often as important as the conclusion itself.
Our Process – Step by Step
Our process is clear, efficient and supportive from start to finish. From your first enquiry through to the final report, each step is structured to keep the assessment decision-specific, legally robust and free of unnecessary delay, while remaining sensitive to the individual's needs.
Initial enquiry and triage
Contact us by phone, email or online form. A member of our team responds the same working day to 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, including whether a standard or enhanced assessment is needed, so you know exactly what is involved before proceeding.
Assessment appointment
A qualified assessor meets the person at home, in a care setting, in hospital, or by secure video. The assessment is carried out as a calm, structured conversation applying the Banks v Goodfellow test, adapted to the person's needs.
Report preparation and peer review
We prepare a CPR Part 35-compliant report that sets out the reasoning and links the findings directly to the legal test. Reports are reviewed internally before release as part of our quality control.
Secure delivery
The completed report is returned securely by email, typically within ten working days of the assessment. Where needed, we deal with reasonable minor amendments and provide clarification after delivery.
Guides and Expert Insights on Testamentary Capacity
Explore our expert guidance on testamentary capacity, including detailed explanations of the Banks v Goodfellow test, how assessments are carried out in practice, and the issues that commonly arise in contentious probate and will disputes. These guides are designed to support families, solicitors, and professionals who need a clear, practical understanding of how capacity is assessed and evidenced.
Solicitor instructions and evidence in will capacity assessments
Explains solicitor instructions and evidence in will capacity assessments. Covers relevant information, practicable support, evidence and common report risks under the Mental Capacity Act 2005 for families, solicitors and professionals.
Testamentary capacity versus statutory will applications
Explains the difference between testamentary capacity and statutory will applications. Covers relevant information, practicable support, evidence and common report risks under the Mental Capacity Act 2005 for families, solicitors and professionals.
Best testamentary assessment for a family member with suspected undue influence?
Explains how families and solicitors should approach testamentary capacity where pressure, coercion or suspected undue influence may affect a will. Covers evidence, independence and report risks under the Mental Capacity Act 2005.
We also provide mental capacity assessments for other decisions.
If you need a mental capacity assessment for a Lasting Power of Attorney, managing finances, litigating in court, buying or selling property, acting as a trustee, retrospective capacity, or other decision-specific matters, our multidisciplinary team can help.