Capacity to make a will assessment (Testamentary capacity assessment)

An independent assessment by a doctor of whether a person has the mental ability to understand and make a valid will.

✓ Medically reviewed by a GMC-registered consultant · last reviewed September 2026 · next review September 2027 · how we review

In short

It is an independent medical opinion on whether someone can make a valid will, not help with writing the will.
A diagnosis like dementia does not by itself mean a person lacks capacity; the test is decision-specific.
A written report usually follows within days to a few weeks and can be relied on later if the will is challenged.
Use a doctor experienced in capacity work; the assessment should be done at the right time, ideally close to when the will is signed.

A plain-English summary. The detail — including risks and recovery — is below.

At a glance

TypeIndependent capacity assessment (medico-legal)

AnaestheticNot applicable

How long it takesOften one appointment of about an hour, sometimes longer or more than one visit

Hospital stayUsually no hospital stay; can be done at home, in a care home, or in clinic

Time off workUsually none

When you'll see resultsA written report usually follows within days to a few weeks

On the NHS?Usually arranged and paid for privately, often by the person, their solicitor or family

A general guide. Your psychiatrist will give you advice for your situation.

Best fit

Gives an independent, reasoned opinion on whether a valid will can be made now.

Pause if

When the real concern is undue influence or fraud rather than capacity; these are legal questions, though a doctor can flag worries.

Main recovery point

The doctor completes the conversation and any short tests. They may give an initial verbal impression, but the formal view comes in the written report.

Good aftercare

A clear, dated written report with reasons, addressed appropriately and shared as agreed.

On the day

The doctor completes the conversation and any short tests. They may give an initial verbal impression, but the...

Within days to a few weeks

A written report is sent to whoever commissioned it (often the solicitor or the person), setting out the findings...

After the report

The solicitor decides how to proceed. If capacity is confirmed, the will can usually be made or signed; if not...

If capacity is in doubt

The doctor may suggest treating a reversible problem, waiting, or repeating the assessment. In some cases a court...

Medical line illustration of older adult memory and capacity assessment for Capacity to make a will assessment. — Illustration only - not a diagnosis, medical advice or a promise of result. Your anatomy and treatment plan may differ. Vuemedics does not publish before-and-after photos.

What is a testamentary capacity assessment?

A testamentary capacity assessment is when a doctor, usually a psychiatrist, checks whether a person has the mental ability to make a valid will. "Testamentary" just means "to do with a will". The doctor gives an independent opinion; they are not there to help write the will or to take sides.

In England and Wales the legal test still mostly comes from an old court case called Banks v Goodfellow (1870). In plain terms, the person should understand that they are making a will and what a will does, have a broad idea of what they own, remember the people who might expect to be left something, and not be affected by a mental illness that twists their decisions. Alongside this, the Mental Capacity Act 2005 applies in England and Wales and starts from the position that everyone is assumed to have capacity unless shown otherwise.

The law is not the same across the whole of the UK. In Scotland the relevant framework is the Adults with Incapacity (Scotland) Act 2000, and in Northern Ireland it is the Mental Capacity Act (Northern Ireland) 2016 (which is only partly in force, so which rules apply can depend on the decision and the setting). The everyday principles a doctor uses when assessing someone are broadly similar wherever you live, but the exact legal test and paperwork differ, so it is worth using a solicitor and a doctor familiar with the law in your part of the UK.

Importantly, capacity is decision-specific. Having a diagnosis such as dementia does not automatically mean a person cannot make a will. Many people with early memory problems can still make a valid will. The assessment is about this particular decision, at this particular time.

The assessment cannot make a will valid on its own, and it cannot force a particular outcome. It records a careful, reasoned opinion that a solicitor and, if needed, a court can rely on.

Types, options & approaches

There may be different ways to do this. The right approach depends on the clinical question and your circumstances.

Assessment for a current will

The doctor assesses capacity at, or close to, the time the person is making or signing a will. This is the strongest position, sometimes called following the "golden rule".

Retrospective assessment

An opinion formed after the event, often after death, by reviewing medical records, the will and witness accounts. This is harder and more uncertain because the person cannot be examined.

Capacity to give instructions vs capacity to sign

The law looks at whether the person understood the will when they gave instructions and when they signed it. An assessment may need to consider both points in time.

Assessment alongside undue influence concerns

Sometimes the worry is not capacity but whether someone is pressuring the person. A doctor can comment on capacity and flag concerns, but undue influence is ultimately a legal question.

Two common situations

	Current will	After death (retrospective)
Person examined	Yes, in person	No, records only
Certainty	Higher	Lower
Best time to arrange	Before or at signing	Once a dispute arises

Assessing capacity at the time the will is made is far more reliable than trying to judge it years later.

Preparing for your test

Ask the solicitor or doctor what the assessment is for and who has requested it, so everyone is clear it is independent.
Have a recent list of medicines, and the names of the GP and any specialists involved.
Bring or share relevant medical records, memory test results and any previous assessments if available.
Have a broad idea ready of what the person owns and who their close family and dependants are.
Choose a quiet time of day when the person is usually at their most alert.
Arrange for glasses, hearing aids or an interpreter if needed, so communication is as good as possible.
Decide in advance where the assessment will happen (home, care home or clinic) and who, if anyone, should be present.

What happens

The doctor will explain who they are and that their job is to give an independent opinion. They will usually want to speak with the person on their own for at least part of the visit, so the person can answer freely.

They will have a conversation rather than only a tick-box test. They will explore whether the person understands what a will is, has a general sense of what they own, remembers the people who might expect to benefit, and can weigh up their choices. They may use a short memory test and will take into account any illness or medicine that could affect thinking.

The doctor may also look at medical records and, with consent, speak to family, carers or the GP for background. They will note how the person communicates and whether they seem free from pressure.

Afterwards the doctor writes a report setting out what they found and their reasoned opinion, in language a solicitor or court can use.

Is this test right for me?

A good consultation should explore whether it's the right choice for you now — including reasons to wait or consider something else.

May not be suitable if…

When the real concern is undue influence or fraud rather than capacity; these are legal questions, though a doctor can flag worries.
When the person is acutely unwell, delirious or heavily sedated, so any assessment now would not reflect their true ability.
When a routine assessment is wanted purely to rubber-stamp a decision already made, rather than to form an honest, independent view.
When the person clearly cannot engage at all and the question is really about a court-made (statutory) will.

Delay or rearrange if…

There is a treatable cause of confusion, such as an infection, dehydration or delirium.
Sedating or recently changed medicines may be clouding thinking and could be reviewed first.
The person is exhausted, in pain or very distressed and a calmer time would be fairer.
Key information, such as medical records or details of assets and family, is missing.
There are safeguarding concerns that need addressing before any will is made.

Alternatives to discuss

A solicitor assessing capacity themselves for a straightforward case, seeking a medical opinion only if in doubt.
Treating a reversible cause and reassessing once the person is at their best.
Waiting and arranging the assessment at, or very close to, the moment the will is signed.
An application to the relevant court (the Court of Protection in England and Wales) for a statutory will if the person lacks capacity.
A broader cognitive or memory assessment first, if the underlying picture is unclear.

Before you decide

Use this as a shared-decision checklist. The aim is not just “can this be done?”, but whether it is right for you, now, with the risks and alternatives clearly understood.

What matters most to me?

Think about symptoms, daily life, work, caring responsibilities, sport, fertility, travel, appearance and anxiety — the right choice depends on your priorities, not just the medical facts.

What are all my options?

Ask about waiting, monitoring, medicines, rehabilitation, a smaller or larger procedure, a different test, NHS referral, or a second opinion where that would help.

What would make me pause?

Active infection, pregnancy, unstable medical problems, smoking, medicines that increase bleeding, poor support at home, or feeling pressured are all reasons to slow down and get tailored advice.

What happens if I do nothing today?

For some problems, waiting is safe; for others, delay can make treatment harder. A good consultation should explain the trade-off in plain English.

Benefits

Gives an independent, reasoned opinion on whether a valid will can be made now.
Helps protect the person's wishes by reducing the chance the will is successfully challenged later.
Can support a solicitor to proceed with confidence, or to pause if capacity is in doubt.
Creates a clear, dated record at the time, which is far stronger than opinions formed years later.
Can identify reversible problems (such as infection, delirium or medication effects) that may be affecting thinking.

Risks & complications

More common

Finding the question harder to answer than expected, so the doctor asks for more information or another visit.
The person feeling tested, judged or upset by personal questions.
Capacity that varies through the day, making a single snapshot less clear.

Less common

A conclusion the person does not have capacity at this time, which can be distressing for them and family.
Disagreement within the family about the result.
The need to involve a court (the Court of Protection in England and Wales, or the equivalent court elsewhere in the UK) if a will cannot be made the usual way.

Rare but serious

The report being challenged in court by someone unhappy with the will.
An uncertain opinion that does not fully settle the question, especially in retrospective cases.

The hardest part is that capacity can change and is specific to this one decision. The biggest uncertainty is timing: an assessment done long before, or long after, the will is signed is weaker. Ask the doctor how confident they are, what could change their opinion, and whether a second visit would help.

Published figures to discuss

There are no meaningful complication rates for this kind of assessment because it is a conversation and record review, not a procedure. The uncertainty lies in judgement: capacity can fluctuate, assessments done far from the time of the will are weaker, and retrospective opinions formed only from records are the least certain of all.

Figure	Reported range	How to interpret it	Source / confidence
Capacity standard applied incorrectly	Legal/process risk	Will capacity uses specific legal tests and must be assessed for the decision at the time.	Testamentary capacity and undue influence in older adults (PMC review)ncbi.nlm.nih.govSource-linked context
Undue influence missed	Important dispute/safeguarding risk	Private assessment, family context and consistency with known wishes help identify pressure.	Testamentary capacity and undue influence in older adults (PMC review)ncbi.nlm.nih.govSource-linked context
Medical opinion substitutes for legal drafting	Avoidable	The clinician assesses capacity; a solicitor should handle the will and legal advice.	Guide sourcesClinical context
Documentation inadequate for future challenge	Common	A good report records understanding of property, beneficiaries, claims and reasoning.	Guide sourcesClinical context

These are literature figures, not a personalised prediction. Your own risks and likely benefits depend on your circumstances, your health, and how your care is carried out and followed up.

What happens afterwards

There is no physical recovery. "Afterwards" is about when and how you receive the doctor's written opinion and what happens next with the will.

On the day

The doctor completes the conversation and any short tests. They may give an initial verbal impression, but the formal view comes in the written report.

Within days to a few weeks

A written report is sent to whoever commissioned it (often the solicitor or the person), setting out the findings and reasoned opinion.

After the report

The solicitor decides how to proceed. If capacity is confirmed, the will can usually be made or signed; if not, other steps may be needed.

If capacity is in doubt

The doctor may suggest treating a reversible problem, waiting, or repeating the assessment. In some cases a court may need to be involved (the Court of Protection in England and Wales, or the equivalent court elsewhere in the UK).

What's normal — and not a worry

Feeling tired or a little unsettled after answering personal questions.
Waiting a short while for the written report.
Family wanting to discuss the result together.
No change to daily life or treatment as a direct result of the assessment.

Aftercare

Keep a copy of the report safe and give the original to the solicitor as agreed.
Ask the solicitor to explain clearly what the report means for the will.
If a reversible cause was found (such as an infection or a sedating medicine), follow up with the GP about treating it.
If capacity was not confirmed, ask what the options are and whether a repeat assessment is sensible later.
Make sure the GP is aware of any new diagnosis raised during the assessment.
Keep details of who to contact with any questions about the report.

Before your test

Solicitor's contact details to hand
List of the person's main assets and close family
Up-to-date medicines list
GP and specialist names
Any previous memory tests or assessments gathered
A quiet, alert time of day chosen for the visit

⚠ Get urgent help if…

Sudden confusion, drowsiness or a marked change in behaviour, which can mean a treatable illness like an infection and needs urgent advice from a GP, or from NHS 111 if you are in England, Scotland or Wales. In Northern Ireland, contact your GP out-of-hours service or your HSC Trust's Phone First service.
New weakness, slurred speech or facial drooping, which needs a 999 call as a possible stroke.
Signs the person is being pressured, frightened or financially exploited by someone.
Severe low mood or any talk of self-harm, which should be discussed urgently with the GP; if it is life-threatening call 999, and for urgent advice use NHS 111 in England, Scotland or Wales, or in Northern Ireland your GP out-of-hours service or HSC Trust's Phone First service.
Worsening memory or thinking that seems out of keeping, which should be reviewed by the GP.

Who to contact: your clinician, clinic or test provider first (keep their number to hand). For urgent advice when you can't reach them, call NHS 111. In an emergency, call 999.

General guidance — it doesn't replace the specific advice your psychiatrist gives you.

Results & realistic expectations

A clear report states whether, in the doctor's reasoned opinion, the person has the mental ability to make a valid will at this time, with the reasons for that view. A "has capacity" opinion supports the solicitor in proceeding; a "does not have capacity" opinion means the usual route is not open and other options are considered.

An assessment cannot guarantee a will will never be challenged, and it cannot prove what someone was thinking at a different time. It is one important, professional piece of evidence, strongest when done close to when the will is made.

How long it lasts

An opinion on capacity relates to a specific decision at a specific time. It does not last indefinitely. If the person's health changes, or if a new or different will is made later, a fresh assessment may be needed. For people with progressive conditions such as dementia, capacity tends to decline over time, so acting promptly while capacity is present can matter.

Related tests, treatments or support

A capacity assessment is often arranged alongside making the will itself, so the doctor can ideally see the person at or near the time of signing. It may also sit alongside a wider memory or cognitive assessment, or a review of medicines that could be affecting thinking.

Follow-up & long-term care

Follow-up is usually through the solicitor, who acts on the report. The doctor may offer to clarify the report, answer the solicitor's questions, or repeat the assessment if circumstances change. If the matter goes to court, the doctor may be asked to provide further evidence.

Repeat, follow-on and what comes next

A fresh assessment may be needed if the person's health changes or a new will is made later.
If capacity is not confirmed, the doctor may treat a reversible cause and reassess, or advise a court route.
Opinions can be revisited if new information, such as additional records, comes to light.
In disputed cases, more than one expert opinion may ultimately be sought.

Ask what happens if the result is unclear or needs repeating, and what is included if further tests or follow-up are needed.

What good aftercare looks like

A clear, dated written report with reasons, addressed appropriately and shared as agreed.
An offer to clarify the report or answer the solicitor's questions.
A sensible plan if capacity is in doubt, including treating reversible causes or reassessing.
Communication with the GP about any new diagnosis or reversible problem found.
A named contact for follow-up questions about the report.

What affects the cost

Costs vary a great deal between people and providers, and we don't publish prices. What matters is understanding what drives the cost and making sure your quote is complete. The main things that affect it:

Whether the doctor travels to a home or care home, or sees the person in clinic.
How long the assessment takes and whether more than one visit is needed.
How much medical record review is involved, especially for retrospective cases.
The seniority and expertise of the doctor in capacity and medico-legal work.
The complexity of the report and whether it must be written to a court standard.
Whether the doctor may later be asked to give evidence or answer further questions.

Make sure your written quote includes

The doctor's fee for the assessment and the written report.
Any travel or home-visit charge.
Whether a second visit, if needed, is included or charged separately.
What the report will cover and who it will be addressed to.
The expected turnaround time for the report.
Any additional fee if the doctor is later asked to clarify the report or give evidence.
What happens, and what is charged, if the opinion is that capacity cannot be confirmed.

On the NHS? This is usually a private, independent assessment arranged through a solicitor or family, rather than a routine NHS service, though NHS clinicians may occasionally be involved.

You're entitled to your total cost in writing — including reports, follow-up and what happens if the result is inconclusive — before you decide.

Choosing a specialist safely

Check the psychiatrist is on the GMC Specialist Register for this area.
Make sure they work at a CQC-registered service, and look for membership of the relevant Royal College or professional body.
You're entitled to time to consider and to have your questions answered before you agree — the psychiatrist who looks after you should explain it, not a salesperson.
Be wary of pressure: time-limited offers or deposits taken before you've had time to think are red flags, not bargains.
You're entitled to your total cost in writing — including any follow-up — before you decide.

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Questions to ask your medical professional

Take this to your consultation. A good psychiatrist will welcome every one of these.

Are you independent, and who has asked for this assessment?
Will you see the person close to the time the will is signed?
What will your report cover, and who will receive it?
How confident are you likely to be, and what could change your opinion?
If capacity is in doubt, what are the options, including a possible statutory will?
Could any of the person's medicines or health problems be affecting their thinking?
Are you on the GMC Specialist Register for this area, and which Royal College or professional body are you a member of?
Will you be the psychiatrist who carries out my test, and who looks after me afterwards?
What are the risks for someone like me, and how often do your own patients have a problem or need it repeated or redone?
What does a realistic result look like — and what can this test not achieve?
What are my options, including waiting, doing nothing for now, or choosing a different approach?
Can I have written information, results and aftercare instructions in a format I can use, including any accessibility or communication support I need?
What is the total cost in writing, including any follow-ups, and how much time do I have to decide?

Frequently asked questions

Does a dementia diagnosis mean my relative cannot make a will?

No. Capacity is specific to the decision and the moment. Many people with early dementia can still make a valid will. The assessment looks at whether they understand this particular decision now, not at the label alone.

Who can do this assessment?

A doctor experienced in assessing mental capacity, often an old age psychiatrist or another suitably qualified clinician. The key point is that they are independent and experienced in this kind of work.

Can this be done on the NHS?

Usually not as a routine NHS service. It is normally arranged and paid for privately, often through a solicitor. Some assessments may be available via NHS services in specific circumstances.

What is the "golden rule"?

It is long-standing guidance that, where an older or unwell person makes a will, a doctor should ideally assess and record their capacity at the time. It is good practice rather than a strict legal requirement, and it helps prevent later disputes.

What if the doctor says my relative does not have capacity?

The usual route to make a will is then not open. The doctor may suggest treating a reversible cause, waiting and reassessing, or, in some cases, an application to the Court of Protection (in England and Wales; Scotland and Northern Ireland have equivalent arrangements) for a "statutory will".

Can the report be used after the person has died?

Yes. A clear, dated report made at the time the will was prepared is valuable evidence if the will is later challenged. Assessments attempted only after death, from records alone, are far less certain.

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How we made this page

Medically reviewed by a GMC-registered consultant. Written in plain English, checked against NHS, NICE, GMC and relevant Royal College / specialist-society guidance, and kept under review. No clinic paid to appear on this page, and we publish no pricing. This is general information to help you prepare — it is not a substitute for advice from your own clinician. How we review our guides →

Source hierarchy: UK regulator and NHS/NICE guidance first, then relevant Royal College or specialist-society guidance, then peer-reviewed evidence for procedure-specific figures where available.

Sources & standards: Mental Capacity Act 2005 (legislation.gov.uk) Mental Capacity Act 2005 Code of Practice (GOV.UK) BMA — Mental Capacity Act toolkit Law Commission — modernising wills law (testamentary capacity) Testamentary capacity and undue influence in older adults (PMC review) Royal College of Psychiatrists — old age psychiatry Scottish Government — Adults with Incapacity (Scotland) Act 2000: section 47 certificate Department of Health NI — Mental Capacity Act (Northern Ireland) 2016 nidirect — urgent and emergency care services (Northern Ireland) nidirect — GP out-of-hours service (Northern Ireland)

Reviews reflect patients' experience of care, not clinical outcomes. For procedure volumes and outcome data see PHIN.

Last medically reviewed 2026-09-21. Spotted something wrong or out of date? Report an error in this guide.