Testamentary Capacity 

What is Testamentary Capacity?

Testamentary capacity refers to the legal and cognitive capacity required to make a valid will. 

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It is important to note that the presence of a mental illness, cognitive impairment, or dementia does not automatically mean that a person lacks testamentary capacity. What matters is whether these conditions affected their understanding and judgement at the time the will is made.

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When is a Testamentary Assessment Needed?

An assessment may be requested in a range of circumstances, including:

• Prior to executing a will, where there are concerns about a person's cognitive functioning or mental health

• Following the death of a testator, where the validity of a will is disputed by family members or other interested parties

• Where a solicitor requires a contemporaneous record of a client's capacity before proceeding with will instructions

• In the context of legal proceedings in which the validity of a will is under challenge

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What Does Assessment Involve?

A neuropsychological assessment of testamentary capacity involves evaluation of specific cognitive abilities. Where an assessment is conducted retrospectively — that is, after the testator has died — the neuropsychologist will review all available clinical, medical, and legal documentation to provide an opinion as to the likely cognitive state of the testator at the relevant time. This may include medical records, treating clinician notes, witness accounts, and any prior neuropsychological assessments.