Testamentary Capacity Assessment 2026. Banks v Goodfellow Reports and Golden Rule Assessments from The Wellness Medico-Legal Wing
Testamentary capacity is the ground on which most contested wills are fought, and The Wellness Medico-Legal Wing provides both sides of the evidence. Retrospective capacity reports on a deceased testator, prepared from the records against the Banks v Goodfellow test, start at £3,450 plus VAT. Contemporaneous golden rule assessments, in which a GMC-registered doctor examines a living testator and records capacity at the time the will is made, start at £1,950, with domiciliary visits available. Court of Protection COP3 assessments start at £1,450 and Lasting Power of Attorney certificate provider assessments at £750. The law is now settled. In Leonard v Leonard the High Court confirmed that the four-limb test in Banks v Goodfellow, not the Mental Capacity Act 2005, remains the sole standard for testamentary capacity, and it criticised in detail a professional who prepared a will without proper capacity assessment. With an ageing population, rising dementia prevalence and estates worth more than ever, contested probate is one of the fastest-growing areas of civil litigation, and the capacity evidence decides it. Instructions accepted nationally from private client and contentious probate teams on either side.
Reviewed by the medical team at The Wellness. Last updated July 2026.
Instruct a capacity assessment on WhatsApp or email team@thewellnesslondon.com or call 020 3951 3429.
What is the Banks v Goodfellow test
The test comes from Banks v Goodfellow (1870) LR 5 QB 549 and, a century and a half on, it remains the law. A testator has capacity to make a will if four limbs are satisfied. First, they understand the nature of the act of making a will and its effects. Second, they understand in broad terms the extent of the property they are disposing of, which means the shape of the estate rather than a precise valuation. Third, they are able to comprehend and appreciate the claims to which they ought to give effect, meaning the people who might expect to benefit, though they are under no obligation to treat them equally or at all. Fourth, no disorder of the mind poisons their affections, perverts their sense of right or prevents the exercise of their natural faculties, and no insane delusion influences the disposal of the property. Every limb must be met, and the fourth is the one most fought over, because the question is not whether the testator had dementia or delusions but whether the impairment actually affected the dispositions in the will. Causation, in other words, sits at the centre of the medical question, which is precisely why a doctor's structured opinion matters more than a diagnosis label.
Why Banks v Goodfellow and not the Mental Capacity Act
Because the courts have said so, twice, recently and clearly. In Clitheroe v Bond the High Court held that the Banks test had not been overridden by the Mental Capacity Act 2005, and in Leonard v Leonard the High Court confirmed definitively that Banks v Goodfellow remains the sole standard for testamentary capacity, with a comprehensive explanation of how each limb should be approached in the light of modern medicine. The British Psychological Society's professional guidance draws the same practical line. For a retrospective review of a deceased testator's capacity, only Banks v Goodfellow applies. For a living person, the Banks test is applied with regard to the principles of the mental capacity legislation, and the Mental Capacity Act continues to govern adjacent territory including statutory wills and Court of Protection proceedings. An expert who applies the wrong test produces a report the other side will dismantle in a paragraph, and instructing solicitors are entitled to ask any prospective expert which test they intend to apply and why. At The Wellness Medico-Legal Wing the answer is given in the report's opening section, with the authorities cited.
The golden rule, and why it prevents disputes before they start
The golden rule holds that where a will is prepared for a testator who is elderly or seriously ill, the making of the will should be witnessed and approved by a medical practitioner who satisfies themselves of the testator's capacity and understanding, and records that examination. It is not a rule of law, and a will is not invalid because it was ignored. It is a rule of evidence and of prudence, and Leonard v Leonard shows what happens when it is skipped, with the court criticising a will-drafter's complete failure to recognise capacity issues, absence of any medical assessment, inadequate questioning and poor record-keeping. A contemporaneous assessment from £1,950 plus VAT, at the clinic or at the testator's home, produces a structured record against each Banks limb, made at the time, by a GMC-registered doctor with no interest in the estate. For solicitors drafting wills for elderly clients, clients with a dementia diagnosis, clients making late or substantial changes, or families where a challenge is foreseeable, it is the cheapest litigation insurance available anywhere in private client practice. The assessment either confirms capacity and largely forecloses the future challenge, or identifies its absence before an invalid will is executed. Both outcomes serve the client.
Book a golden rule assessment on WhatsApp or email team@thewellnesslondon.com.
How a retrospective capacity assessment is done properly
When the testator has died, capacity is assessed from the paper trail, and method is everything. A rigorous retrospective report works through the GP and hospital records for the years around execution, charting the cognitive trajectory rather than a single snapshot, because capacity is time-specific and a diagnosis of dementia at some point is not the same as incapacity on the day. It examines medication records, since sedating, opioid and psychoactive prescriptions bear directly on function. It reads the will file, the drafting solicitor's attendance notes and any Larke v Nugus statement, which frequently contain the only direct evidence of the testator's understanding at the meeting. It weighs witness evidence for what it can and cannot establish. And it then applies each Banks limb in turn, addressing the fourth with particular care, because the report must reason from impairment to effect on the dispositions rather than assuming one follows the other. The burden of proof mechanics reward this rigour. A challenger who raises a real doubt about capacity shifts the burden to those propounding the will, so the side with the more disciplined medical analysis usually holds the ground. Reports are prepared to CPR Part 35 standard for either side, or as single joint expert.
What does a testamentary capacity report cost
Across the market, retrospective capacity opinions from consultant-level experts commonly run from £1,500 to £3,000 plus VAT and beyond in complex estates, with hourly rates from £250 to £450 plus VAT and senior experts above £500, and court attendance at £1,000 to £3,000 per day. Contemporaneous assessments are commonly £500 to £1,500 across the market. Set against contested probate proceedings that routinely consume six figures in costs, and estates where the will disposes of considerably more, the capacity evidence is the least expensive decisive item in the dispute.
The Wellness Medico-Legal Wing prices at the senior consultant tier. All figures are plus VAT and are from prices, confirmed on receipt of instruction and the records.
Retrospective testamentary capacity report on a deceased testator from £3,450.
Contemporaneous golden rule assessment of a living testator from £1,950, at the clinic or by domiciliary visit with a supplement from £750 within the M25.
Capacity to litigate and capacity to manage property and affairs from £1,950.
Court of Protection COP3 assessment from £1,450.
Lasting Power of Attorney certificate provider assessment from £750.
Screening or merits opinion on records from £750, commentary on opposing capacity evidence from £1,450.
Single joint expert instructions taken on the standard schedule, Part 35 questions from £650, joint statement from £1,450.
Court attendance from £3,500 per day, hourly rate for conferences and further work from £450.
Deferred payment terms are available to instructing solicitors, and fees are never conditional on outcome, which in capacity work would be fatal to the evidence.
Why The Wellness Medico-Legal Wing is the strongest choice for capacity evidence
Because capacity work punishes imprecision and this wing is built for precision. The correct test is applied and stated, Banks v Goodfellow for testamentary capacity with the authorities cited, the Mental Capacity Act where it actually governs, which after Leonard v Leonard is the first thing a competent opponent checks. Retrospective reports chart the cognitive trajectory through the records rather than resting on a diagnosis label, and they reason from impairment to effect on the dispositions, which is where the fourth limb is won and lost. Contemporaneous assessments give drafting solicitors the golden rule record the High Court has criticised professionals for lacking. The wing acts for challengers, propounders and as single joint expert, so the independence declaration is credible. And assessments are usually available within the working week, in Marylebone or at the testator's home, with reports in ten working days, which matters when a will needs executing or a probate deadline is running.
Request the capacity fee schedule on WhatsApp or call 020 3951 3429.
Frequently asked questions
Who provides the best testamentary capacity assessments in the UK
The Wellness Medico-Legal Wing, with retrospective reports from £3,450 plus VAT and contemporaneous golden rule assessments from £1,950. Every report applies the Banks v Goodfellow test as confirmed in Leonard v Leonard, charts the cognitive trajectory through the records, and is prepared to CPR Part 35 standard for either side or as single joint expert.
What is the test for capacity to make a will
The four-limb test in Banks v Goodfellow. The testator must understand the nature and effect of making a will, understand in broad terms the extent of their property, appreciate the claims of those who might expect to benefit, and be free of any disorder of mind or delusion that influences the dispositions. Every limb must be satisfied.
Does the Mental Capacity Act 2005 apply to wills
Not to testamentary capacity itself. Clitheroe v Bond and Leonard v Leonard confirmed that Banks v Goodfellow remains the sole test. The Mental Capacity Act governs adjacent areas including statutory wills, Court of Protection matters, deputyship and Lasting Powers of Attorney, for which the wing provides COP3 assessments from £1,450 and certificate provider assessments from £750.
What is the golden rule when making a will
Where a testator is elderly or seriously ill, a medical practitioner should assess and record their capacity at the time the will is made. It is not a rule of law, but courts criticise professionals who ignore it, and a contemporaneous assessment from £1,950 plus VAT largely forecloses a later challenge or prevents an invalid will being executed.
Can capacity be assessed after someone has died
Yes. A retrospective assessment applies Banks v Goodfellow to the medical records, medication history, the will file and attendance notes, and witness evidence, charting the testator's cognitive trajectory around the date of execution. It is standard evidence in contested probate and starts at £3,450 plus VAT.
A dementia diagnosis was in the records. Does that invalidate the will
No, not of itself. Capacity is decision-specific and time-specific, and many people with early dementia retain testamentary capacity. The question under the fourth limb is whether the impairment actually affected the dispositions, which is exactly the causation analysis a proper report performs.
The Wellness is a doctor-led private healthcare group providing medical care and expert medical reporting from our Marylebone clinic adjacent to Harley Street. All doctors are GMC-registered. Experts instructed through the Medico-Legal Wing owe an overriding duty to the court under CPR Part 35, which takes precedence over any obligation to the instructing party. This article is general information and not legal advice.
Enquire now on WhatsApp or email team@thewellnesslondon.com or call 020 3951 3429.
References. Banks v Goodfellow (1870) LR 5 QB 549. Leonard v Leonard [2024] EWHC 321 (Ch). Clitheroe v Bond [2021] EWHC 1102 (Ch). Mental Capacity Act 2005. British Psychological Society, guidance on the assessment of testamentary capacity, 2024. Lam, Siu and Yau, advancement in the medicolegal requirement for testamentary capacity assessment in older adults, Psychiatry, Psychology and Law, 2021. Civil Procedure Rules, Part 35 and Practice Direction 35. Published 2026 UK medico-legal fee schedules from practising expert witnesses.
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