Testamentary Capacity Assessment Questions and Answers 

Firstly, let’s get the legal jargon out of the way so you understand the important legal terms that might be mentioned by your Solicitor when supporting you to draw up a new Will, or by our assessor during your testamentary capacity assessment. But don’t worry, our assessors are skilled at explaining these legal terms in plain language during your assessment, so if you’re unsure about any of the important legal terms when entering into a new Will, we will support you in understanding these terms on the day. 

A Will: Is a legal document that you create which sets out instructions for who will inherit your estate and what should happen when you die.

Testator: Is the person who the Will is executed for, the person to whom the Will belongs.

An estate: Is everything you own which might include money, property or possessions.

An executor: Is a person or people named in your Will who sort out your estate, in line with your expressed wishes in your Will after you have died.

A beneficiary: Is the people or organisation you’ve chosen to name in your Will to inherit something or your estate after you have died.

Why has my solicitor suggested I need a testamentary capacity assessment? 

As a consequence of the Inheritance (Provision for Families and Dependents) Act 1975, legally those within your network who feel that they might have been unfairly excluded from your Will could have justification to apply to the Court to contest your Will after your death and can request the Court order payment in their favour from your estate, regardless of your wishes expressed in your Will at the time it was executed. 

Furthermore, parties excluded from your Will might also have cause to successfully contest your Will if they can argue in Court that you might not have had testamentary capacity at the time your Will was drawn up or if they can argue credibly that you might have been unduly influenced and pressured to change your Will by someone else in your network. 

Your Solicitor might suggest you partake in a testamentary capacity assessment with consideration of the above, in order to minimise as far as possible, the risk of your Will successfully being contested by anyone following your death, and to ensure your estate is divided and disseminated to your chosen beneficiaries exactly as you intended after your death. 

Our experienced and highly qualified assessors are experts in ensuring the above points which might make your Will vulnerable to being contested after your death are explored as part of the assessment process. Furthermore, our assessors ensure the report produced is of Court standard, credible and has robust evidence of your understanding and rationale for your decision-making in your Will.

What legal test is used for testamentary capacity assessments? 

The legal test to determine testamentary capacity is a common law test called Banks versus Goodfellow, fascinatingly established in a landmark case in 1870. Banks versus Goodfellow has stood the test of time and remains the legal test for assessing testamentary capacity to the present day. The key components which the assessor must evidence during the assessment and format in the consequential Court standard report are: 

• Understand the nature and effect of the Will 
• Understand the extent of their money, property and possessions 
• Are aware of the people within their own network they would usually be expected to provide for 
• Are free from any delusion of the mind that would affect their dispositions to those people 

What can I expect to happen during my testamentary capacity assessment?

You can expect your assessor to offer you a clear introduction and expectations as to what is to be covered during the appointment. All our assessors are skilled and experienced in a conversational approach so you can be assured that the assessor will put you at ease, with a relaxed and warm but professional approach. If you are not sure about the legal terms important when entering into a new Will such as; estate, beneficiary or executor, our assessor will carefully provide you with explanations in plain English to support you in understanding the key terms in an accessible way.

The assessor will discuss the following points through with you during your testamentary capacity assessment:

• Your motivation to execute a new Will along with when your new Will would come into effect, and your understanding of what happens should you wish to change your Will again in the future.
• Your understanding of your estate to include money, property and possessions.
• Who you have chosen as your executor(s) and what qualities you feel makes a good executor .
• All those who might have a claim upon your estate and how you would describe your relationship with each.
• Who you have chosen to be the beneficiaries in your new Will and why.
• Who you have excluded as a beneficiary in your Will and why, including that you have considered any potential impact upon those who are excluded from your Will or upon those taking a lesser share of your estate. 
• Your intended distribution of your estate among your chosen beneficiaries. 
• That you can recall and advise of your rationale of any significant changes from your previous Will to your new Will.

Our assessors will explain to you that there is ‘no wrong answer’ when it comes to deciding to whom and how you want to distribute your estate upon your death, as long as you can give a brief description of how you arrived at your decision and that the wishes expressed in your Will are your own. 

How long will my testamentary assessment take?

Typically, it takes approximately one hour for our assessors to go through all the points required for a testamentary capacity assessment. However, we will always follow a pace you are comfortable with. Depending on the number of proposed beneficiaries contained in your new Will, or if your estate is complex, the appointment could take longer. 

Do you need a copy of my new Will? 

To ensure the assessor covers all the essential components of the Banks versus Goodfellow test which will satisfy the potential future scrutiny of the Courts, it’s essential that we have a clear understanding of the full contents of your new Will ahead of the appointment in order to allow our assessors to prepare the assessment content. Ideally, we like to have a copy of the new draft Will ahead of the appointment. However, if the new Will is yet to be drawn up a clear summary breakdown of the intended executors, chosen beneficiaries and manner of distribution planned for the new Will is sufficient for us to be able to prepare and complete the testamentary assessment. 

Why do you need a copy of my old Will? 

From time to time successful legal challenges of a contested Will occur in Court in the absence of sufficient evidence that the testator could recall their previous Will and the significant changes to the new Will. For us to provide you with the most Court robust testamentary capacity report that can withstand scrutiny in Court it’s essential that we can evidence in our report that you were aware of the contents, and any significant changes from your previous Will when your new Will is executed. Ideally, we like to have a copy of your old Will ahead of the appointment. However, if the old Will is unavailable a clear breakdown of the identified executors, chosen beneficiaries and manner of distribution detailed in the old Will summarised is sufficient for us to be able to prepare and complete the testamentary assessment.

Why do you need to know the details of my money and property affairs to complete a testamentary assessment? 

We fully understand why you might be reluctant or cautious to share your financial details with us ahead of the assessment. However, it is crucial that our assessors understand the extent of your assets ahead of the appointment to prepare the assessment content. Evidencing your understanding of your estate is a critical aspect of the Banks versus Goodfellow test for us to be able to produce a robust Court standard report post-appointment. 

Is anyone allowed to be present to support me during my testamentary capacity assessment?

We understand that having a testamentary assessment might make you feel apprehensive. Please be assured our friendly and professional assessors will do all they can to put you at ease during the appointment. However, if you would prefer to also have a person sit in with you for additional reassurances it is critical that this person is not one of your proposed beneficiaries, as this will invalidate the credibility of the report as the assessor will not be able to discount the impact of any undue influence on your decision making.

Perhaps you have a neighbour or friend who might be willing to sit in on the appointment with you. Your beneficiaries are very welcome to be present for introductions at the appointment opening and to stay whilst they check you are relaxed and comfortable to proceed. However, once the assessment commences, we kindly request that your beneficiaries vacate for the assessment duration. 

Can a testamentary assessment be completed virtually? 

Testamentary capacity assessments can be undertaken both face to face or virtually, and we complete many testamentary assessments virtually as this option often appeals to those being assessed as a time and cost-efficient option. 

However, as a critical aspect to be evidenced during a testamentary capacity assessment is that the person being assessed is free from any undue influence, we must be vigilant that no proposed beneficiaries are in attendance during a virtual testamentary assessment. Consequently, if you are unable to operate a virtual appointment yourself on your computer or laptop, then we suggest that you either visit your Solicitor’s office so that they may facilitate the technology for the virtual appointment for you, or your Solicitor supports with facilitating the technology for you in your own home.

Unfortunately, we cannot accept instructions for a virtual testamentary assessment where one of your proposed beneficiaries are identified to support with the virtual appointment as we would be unable to rule out undue influence as a factor in your decision making for your new Will with a beneficiary being in attendance at your virtual assessment. 

Can I still make a Will if I have a diagnosis of dementia a brain injury or a learning disability?

Absolutely, a diagnosis of dementia, a brain injury, a learning disability or similar has no bearing on whether you have testamentary capacity or not. All our testamentary assessments are undertaken in an especially supportive manner with plenty of accessible explanations, repetition of key points and supportive prompts and encouragement. Our assessors are also skilled in alternative communication methods and are able to complete assessments with those who have communication impairments as we have access to a wide range of creative communication resources to cater for that individual’s specific needs. Whether you have testamentary capacity is concluded by evidence of being able to understand, retain and weigh up, post supportive explanation the critical aspects of the Banks versus Goodfellow test and the conclusion is not based on any diagnosis you might have but on the evidence our assessor collects on the day.

I am estranged from some members of my family. Why do you still need to talk about these people during my testamentary assessment? 

Most of the testamentary assessments that we undertake have an estranged family member or complex blended family dynamics involved as these family systems are so common in the modern world, yet also make your Will more vulnerable to future contesting in Court if not carefully considered as part of your testamentary assessment. 

What happens if the assessor concludes that I don’t have testamentary capacity? 

Our assessors are experts in undertaking testamentary assessments, completed in a supportive manner to best foster your understanding of the appointment content. However, occasionally, despite our best efforts we cannot conclude you have testamentary capacity. In these cases, we can complete a COP3 for a Statutory Will in lieu of a testamentary capacity report if advised so promptly after the assessment appointment.

A Statutory Will is a Will ordered by the Court of Protection in the best interests of a person without testamentary capacity. We recommend that you speak with your Solicitor to decide if applying for a Statutory Will via the Court of Protection is the right option for you if you are assessed as not having testamentary capacity.

If I make a new Will after my testamentary assessment, will I need a new testamentary capacity assessment?

If you decide to change your Will again in the future after having your testamentary capacity assessment, we suggest you speak with your Solicitor as to whether a further testamentary capacity assessment is recommended.

If a simple change is required it might be that your current testamentary report is still sufficient however the report will only evidence your testamentary capacity at the time and date it was completed, and to cover the decisions contained in that Will.  Complex changes in a further Will such as adding or removing a beneficiary, or if you have had a new medical diagnosis affecting memory or understanding, it may well mean that you require a further testamentary assessment.

What happens after my testamentary capacity assessment? 

At the end of the appointment, our assessor will let you know what the outcome of the assessment has been. If you have a Solicitor supporting you with executing your new Will, we will also let them know what the appointment outcome is on the same day. The full comprehensive and robust Court standard report will then be finalised and returned within 7 days of the assessment appointment ready to be filed with your new Will.

To book a testamentary capacity assessment with us, simply fill in our online form or give us a call on 0333 772 9315 and we can get the process started.