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Testamentary capacity assessments for wills and probate.
Contemporaneous assessments before a will is signed, and retrospective assessments from the records when a will is challenged. Send the dates and the issues. The search is free, and if the person making the will is seriously ill, say so in the enquiry.
What you get for a testamentary capacity question.
Tell us whether the will is still to be signed or is being challenged.
Before the will is signed
You get the CV, fee and availability of each doctor who can see the person before the will is signed.
After death, from the records
For a retrospective report the doctor works from the records you hold. Reports usually take 1 to 2 weeks, or 2 to 3 days when urgent. Timescales are estimates and depend on expert availability, the appointment and receipt of the relevant records.
Checked experts and a case manager
We check experts for registration and insurance. A named case manager arranges any appointment and manages the instruction through to delivery of the report.
What a testamentary capacity report covers.
Testamentary capacity is a legal test, but medical opinion carries weight.
The court will generally be greatly assisted by expert medical opinion. It also gives weight to the evidence of the drafting solicitor and of lay witnesses who knew the testator (Guy v McGregor [2019] NICh 17, paras 11 and 14, a Northern Ireland decision).
Psychiatry has moved on since 1870. Banks v Goodfellow still stands, but an affective disorder, including one caused by bereavement, is more likely to affect decision-making than comprehension (Key v Key [2010] EWHC 408 (Ch), paras 95 and 96).
The test comes from Banks v Goodfellow (1870) LR 5 QB 549. The testator must:
- understand the nature of the act of making a will, and its effects
- understand the extent of the property they are disposing of
- be able to comprehend and appreciate the claims to which they ought to give effect
- have no disorder of the mind that poisons their affections, perverts their sense of right or prevents the exercise of their natural faculties
As quoted in Clitheroe v Bond [2021] EWHC 1102 (Ch), para 30.
The two assessments.
Most assessments happen at one of two moments, and each needs a different report.
Contemporaneous assessment
- The golden rule. With an aged or seriously ill testator, the solicitor should first have a medical practitioner satisfy themselves as to the testator’s capacity and understanding (Kenward v Adams, cited in Key v Key, para 7)
- Following it does not make a will valid, and ignoring it does not make one invalid. Its purpose is to avoid disputes, or narrow them (Key v Key, para 8)
- The report records what the testator understood on the day, against each limb of the test
Retrospective capacity assessment
- After death, a doctor forms an opinion from the GP, hospital and care records, the medication charts and the will file
- The evidence of an experienced independent solicitor who drew up the will is likely to carry considerable weight but is not decisive; the judge evaluates all the evidence on capacity (Hughes v Pritchard [2022] EWCA Civ 386, paras 79 and 80). The expert must engage with the drafting solicitor’s evidence
- Once you have chosen an expert, send the will and any earlier wills, and the will file with the drafting solicitor’s account (which practitioners request in a Larke v Nugus letter). Add the GP, hospital and care home records, the medication charts and any earlier capacity assessment
Which expert the case needs.
Testamentary capacity often turns on more than one discipline. Tell us the diagnosis in the records, and we will suggest the specialties that fit.
Old age psychiatrist
Dementia, depression and other mental disorders in older testators, judged against each limb. See psychiatric expert evidence.
Neurologist
Stroke, Parkinson’s disease and other neurological causes of cognitive change. See neurological evidence.
GP expert
What the GP entries meant at the time, often the only medical record from the date of the will. See GP expert witnesses.
Undue influence, knowledge and approval.
Where undue influence or want of knowledge and approval is pleaded alongside capacity (CPR 57.7(3) and (4)), medical evidence goes to the testator’s vulnerability; whether influence was exerted is for the court. Tell us every ground pleaded, and we find an expert who can deal with the medical side of each.
Across the UK.
We find experts for cases in Scotland and Northern Ireland too, so tell us where the claim is.
England and Wales
- Banks v Goodfellow, as applied in Clitheroe v Bond and Key v Key
- Probate claims follow CPR Part 57, and the expert reports under CPR Part 35
Scotland
- The courts apply Banks v Goodfellow and Sivewright v Sivewright’s Trustees (Smyth v Rafferty [2014] CSOH 150, para 38). The burden of proving capacity lies on the person relying on the will (para 41)
- Facility and circumvention is a separate ground: the deceased was facile and was pressurised by acts of circumvention or fraud (para 48)
- The doctor gives evidence as a skilled witness
Northern Ireland
- The Chancery Division applies Banks v Goodfellow (Guy v McGregor [2019] NICh 17)
Statutory wills.
In England and Wales the Court of Protection can order a will to be executed for a person who lacks capacity, known as a statutory will (Mental Capacity Act 2005, s18(1)(i)). No statutory will can be made for anyone under 18 (s18(2)).
The application needs evidence of capacity under the Mental Capacity Act, which is a different test from Banks v Goodfellow. If you are applying for a statutory will, tell us, and we find an expert who can assess capacity under that Act.
Questions about testamentary capacity.
For anything else about your case, call us.
Call 0121 752 6061What does a testamentary capacity report cost?
You see each expert’s fee with their CV before you instruct. The fee for a retrospective report depends on the volume of records, so tell us roughly how much there is.
What is testamentary capacity?
The mental capacity needed to make a valid will. In England and Wales it is judged by the four-part test in Banks v Goodfellow, not by the Mental Capacity Act 2005.
Can capacity be assessed after the testator has died?
Yes. A retrospective capacity assessment is a doctor’s opinion formed from the medical records and the other evidence, measured against Banks v Goodfellow at the date the will was made.
Who should carry out a testamentary capacity assessment?
Usually a doctor whose specialty fits the condition: an old age psychiatrist for dementia or a neurologist for a stroke, sometimes with a GP expert on what the records show. Tell us the diagnosis in the records, and we will suggest the specialty.
Send the case. We find the experts.
- The type of caseFamily, personal injury, criminal, immigration, employment…
- The specialty, or the issuesIf you are not sure who you need, describe the medical questions
- The court or tribunalAnd any directions already made about expert evidence
- Your deadlineHearing, filing or limitation date
- How the case is fundedLegal aid, private, CFA or insurer
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We send you the CVs, fees and availability of experts who can meet it.