A will made later in life
When an elderly client makes a new will or changes an existing one.
Testamentary capacity assessments
An independent assessment of whether a person has the capacity to make or change a will, with a written report for the instructing solicitor. It is often requested when a will is made later in life or after a serious illness, to help prevent disputes about the will.
We accept instructions from solicitors. If you are a family member, your solicitor can contact us on your behalf.
The test for making a will
For wills, the courts apply the common law test from Banks v Goodfellow (1870), not the test in the Mental Capacity Act 2005. The High Court confirmed this in 2021.
Under the test, the person making the will should:
- Understand that they are making a will, and its effects
- Understand the extent of the property they are leaving
- Understand and weigh the claims of the people they ought to consider
- Have no disorder of the mind that poisons their feelings, distorts their sense of right or stops them thinking as they normally would, and no delusion that affects how they leave their property
This is general information, not legal advice.
The golden rule
Restated by the High Court in Key v Key (2010).
The courts have said that when a solicitor prepares a will for someone elderly or who has been seriously ill, a medical practitioner should first satisfy themselves of the person's capacity and understanding, and make a record of their examination and findings at the time.
This is known as the golden rule. It is good practice rather than a legal requirement, and its purpose is to prevent or reduce disputes about the will.
Our testamentary capacity assessments are carried out by our consultant old age psychiatrists, who are medical practitioners, as the golden rule describes. Our report records the assessment and our findings at the time.
When solicitors ask for an assessment
After a serious illness
When a client has been seriously ill and wants to make or change a will.
With a dementia diagnosis
When a client with dementia, or with memory problems, wants to make or change a will.
Dementia and making a will
A diagnosis of dementia does not in itself mean a person cannot make a will. The question is whether they meet the test for the will they are making, at the time they make it.
How an instruction works
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Today
Instruct us
Call or send an enquiry. We confirm the assessment and the fee.
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Before the assessment
We gather the background
Health summaries, medical records and background information, including from the person's GP and other healthcare providers.
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Report within five working days
Assessment and report
We carry out the assessment and send a written report to you as the instructing solicitor.
Testamentary capacity questions
What is a testamentary capacity assessment?
An assessment of whether a person has the mental capacity to make or change a will, using the test the courts apply, from Banks v Goodfellow (1870). We send a written report to the instructing solicitor.
Does the Mental Capacity Act 2005 apply to wills?
For testamentary capacity, the High Court confirmed in 2021 that the Banks v Goodfellow test applies, rather than the test in the Act.
What is the golden rule?
Guidance from the courts that when a will is prepared for someone elderly or seriously ill, a medical practitioner should assess their capacity and record the findings at the time. It is good practice, not a legal requirement.
Can someone with dementia make a will?
Yes, if they meet the test for testamentary capacity when the will is made. A diagnosis of dementia does not in itself mean a person lacks capacity.
How much does a testamentary capacity assessment cost?
Fees start from £1,000.00 and depend on the location, whether the assessment is remote, what it needs to cover and the complexity of the case. We confirm the fee before you instruct.
Instruct a testamentary capacity assessment
Call us to discuss a case, or send an enquiry and we will reply to confirm the assessment and the fee.
Phones answered 24 hours a day. Our clinical team is available Monday to Friday, 8:00 to 18:00.
Related services
Sources
Clinically reviewed by Dr Arpita Chakrabarti (GMC 5180513) and Dr Rohit Renjhen (GMC 5209302), consultant old age psychiatrists. Last reviewed 6th October 2026. Next review 6th October 2027. This page is general information, not legal advice.