Capacity to revoke or to make a lifetime gift
We address the related but legally distinct tests for capacity to revoke a will, to make a lifetime gift, and to enter into lasting powers of attorney.
Case type
Wills & Probate
Probate disputes frequently turn on whether the testator had testamentary capacity at the time the will was made, applying the test in Banks v Goodfellow (1870) (and increasingly the Mental Capacity Act 2005). Retrospective psychiatric assessment of the deceased, based on medical records and witness accounts, is often required.
Use this category when…
- You need to map a court order or letter from counsel to the right report
- You're confirming whether a psychiatric expert (rather than a psychologist) is the right discipline
- You want a fixed quote and a realistic deadline before instructing
What to send with your enquiry
A short summary plus the items below is enough for us to match an expert and confirm the deadline — you don't need the full bundle to get a quote.
- Short case summary and the questions you want answered
- Hearing or listing date and jurisdiction
- GP and psychiatric records (full set where available)
- Witness statements, schedules of loss or threshold documents
- Any prior expert reports
- Court order granting permission to instruct (family / Court of Protection)
Overview
Probate disputes about testamentary capacity require a retrospective psychiatric assessment of a person who is, by definition, no longer available for examination. The opinion must be built from contemporaneous GP and hospital records, witness statements, the will file and any solicitor's attendance notes.
We instruct old age psychiatrists and neuropsychiatrists with substantive experience of retrospective capacity work and of giving evidence in the Chancery Division and County Court probate lists.
Legal framework
Reports apply the Banks v Goodfellow test for testamentary capacity, the Mental Capacity Act 2005 where appropriate, and the principles in Re Loxston / Walker v Badmin.
Psychiatric issues addressed
- Testamentary capacity at the date of execution
- Dementia and its impact on capacity at relevant times
- Delusional disorder and undue influence
- Capacity to revoke or alter a will
Questions you can put to the expert
Drop any of these straight into your letter of instruction.
- Did the testator have testamentary capacity at the relevant date?
- Was capacity affected by dementia, delirium or psychiatric disorder?
- Was the testator susceptible to undue influence?
Wills & probate: areas we cover
Dementia and fluctuating capacity
Where the testator had a diagnosis of dementia, the question is rarely whether they had capacity at any point but whether they had capacity on the specific date of execution. We address the trajectory of the disease and the available windows of capacity.
Testamentary capacity (Banks v Goodfellow)
Reports apply the four-limb Banks v Goodfellow test, understanding the nature of the act, the extent of the property, the claims of those who might expect to benefit, and the absence of any disorder of the mind that perverts the disposition. We address each limb separately and against the contemporaneous evidence.
Undue influence
Reports address whether the testator's mental state, through depression, dependency, delusional disorder or cognitive impairment, made them susceptible to undue influence at the relevant time.
What's in the report
- Part 35 / FPR Part 25 / CrimPR statement of compliance, as applicable
- Expert's CV and statement of independence
- Detailed list of materials considered (records, statements, scans, prior reports)
- Full history, mental state examination and collateral information
- Diagnostic formulation referenced to ICD-11 / DSM-5-TR
- Reasoned opinion on causation, apportionment, prognosis and treatment
- Indicative treatment costings where requested
- Statement of truth signed in the prescribed form
How we help
- Same-day shortlist of suitable consultants once we receive a brief instruction
- Choice of male or female assessor, and of sub-specialty, on every instruction
- Fixed fees agreed up front; Legal Aid prior authority figures supported
- Standard turnaround 1–2 weeks; urgent reports inside 5 working days where the diary allows
- Joint reports, addendum reports, Part 35 questions and CMC attendance handled by the same expert
- Remote (secure video) or in-person assessment across the UK
Frequently asked questions
Recommended services
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