Confirming testamentary capacity

The scene

A GP received a request from a solicitor asking her to confirm that a patient, who had recently died, had had testamentary capacity when revising his will two years before his death. The patient, a man in his mid-40s, suffered from epilepsy which had been resistant to treatment with medication and had died unexpectedly in his sleep. Relatives were contesting the will, having discovered that the patient had changed his will in favour of a woman he had only just met, who was now his sole executor and benefactor.

Concerned about the medico-legal position, the GP rang the MDU for advice. She explained that she had no concerns about the patient’s mental capacity and asked whether it would be acceptable to confirm he had testamentary capacity when he changed his will, even though she had never been asked to undertake an assessment.

MDU advice

The MDU adviser explained that the test for testamentary capacity is a specific test based on the judgment in the case of Banks v Goodfellow1. This case concerned a man with schizophrenia who bequeathed his considerable estate to his teenage niece. The court held that the validity of the will was unaffected by partial unsoundness of mind; so long as the person making the will understood what he was doing with his property and affairs at the time the will was drafted and executed (signed), then it was valid. The judgment said that when assessing a patient’s testamentary capacity, a doctor should establish the patient’s understanding of the following areas. As an assessment is both time and decision specific, the doctor should also make a contemporaneous note of their observations.

  1. The nature and effect of making a will – in essence, that a will comes into effect after the patient’s death and that during their lifetime, as long as they retain capacity to do so, they can revoke or amend the will at any time. The patient should also understand that there are choices open to them in choosing an executor and who might inherit their estate.
  2. The extent of his/her estate – the patient should understand in general terms the extent of their wealth and how this might change during their lifetime.
  3. Who might expect to benefit from their estate – that is, who might expect to benefit from their estate, even if the patient decides not to name individuals in their will. A doctor should also consider the effect any mental illness might have on the patient’s decision making and whether the patient may be vulnerable to influence or coercion, especially if they appear to be making a decision that conflicts with what the doctor knows of their personality.
  4. In the absence of such an assessment, it would usually be advisable not to comment on the testamentary capacity of a patient. In this case, the GP was advised not to confirm the presence or absence of testamentary capacity, and the adviser helped her draft a response to the solicitor.


  1. Banks v Goodfellow (1870) LR 5 QB 549

This is a fictional case compiled from actual cases in the MDU’s files.

This page was correct at publication on 01/08/2012. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.