Evidence in testamentary capacity probate disputes: the elements forming the landscape

03/02/2026

A dispute about the capacity of a deceased testator to have made a will might start in various places. It might start with a will that is so unexpected that it gives rise to a suspicion that something must have gone wrong. It might start with a belief that the provision is so unfair that no competent testator could have considered it appropriate. It might be driven by some more direct evidence as to the state of the testator’s mind that sets the wheels of concern in motion. Likely, it may be some combination of the three.

Courts, of course, do not decide such cases simply on surprise or disappointment. They decide them on evidence.

That evidence can take a number of forms. For the purposes of this article, I consider briefly five common forms of evidence as to testamentary capacity¹ (or lack thereof), and how they sit in the overall evidential picture underpinning a challenge to a will on that basis. These are:

• medical evidence associated with the making of the will;
• the opinion of a professional assisting in the making of the will;
• the evidence of family, friends and acquaintances of the testator;
• medical records and care and similar records of the testator; and
• retrospective capacity assessments.

Medical evidence associated with making the will: the ‘golden rule’

The so-called ‘golden rule’ is that of obtaining medical assessment of capacity of a testator at the time of making the will in cases that might give rise to doubt². Clearly, such evidence can have significant evidential value. Often, however, it will not have been procured. Whilst some noise may be made about that, there is no rule requiring contemporary medical assessment of the testator in order for a will to be valid and the absence of such an assessment is not, in itself, evidence of a lack of capacity (even assuming that there was a reason to have doubts as to capacity, which it may well be said there was not).

If the golden rule has been followed, the resulting medical assessment has obvious weight, but it is not inherently decisive³ . It must be considered against the other evidence of capacity, and the quality and circumstances of the capacity assessment may be relevant factors.

Professionals involved in the making of the will

Even assuming no GP was involved at the time of making the will, a legal professional naturally often will have been. If not already set out at the point that the challenge begins to gather steam and comes into the hands of disputes lawyers, the opinion of the professional in question is likely to become apparent quite quickly either as a result of information requested about the circumstances in which the will was made or indeed from the will file.

What this person has to say can have significant value. It might be close to decisive in some circumstances. For example, if it becomes clear from the will file that the testator’s instructions and the context given for them were wildly inaccurate, this is potentially powerful evidence supporting a lack of capacity. At the other end of the spectrum, if a solicitor involved in making the will describes (and the file supports) the testator having a clear and accurate recollection of relevant details and presenting in a way that gave no cause for concern, this may greatly undermine a challenge based on a relative’s suggestion that the testator was not capable of being coherent at the time of making the will.

However, issues with testamentary capacity can be subtle and insidious, and it is perfectly possible for the evidence of a wills professional as to the apparent state of mind of the testator not to be as decisive as this. If it is suggested, for example, that the deceased was subject to a specific delusion, it might be that this would be hard to detect in the course of the making of the will. Something may have been said to explain the provision being made which might have sounded quite sensible but as to whose accuracy and rationality other evidence may be required.

What is to be made of the view of the involved legal professional is thus clearly heavily dependent on the specific facts of the case and the degree to which the professional was in a position to form an informed view as to what was going on. Light may be cast on this question by the degree to which the professional had prior knowledge of the testator, so as to be able to identify any changes in presentation, oddities in a proposed new will or other causes for concern.

Evidence from family, friends and acquaintances

Again (and inevitably) the value of this evidence depends on the circumstances. Witnesses will have varying degrees of knowledge of the testator, will have varied in the degree to which they were alert to signs of capacity or lack thereof, and may also, even whilst being perfectly honest, vary in the degree to which their circumstances or sympathies predispose them towards seeing the testator through a lens of capacity or incapacity.

If there is a significant point of factual contention which witnesses of this sort can helpfully speak to, rather than simply opining generally on the deceased, that is likely to make their evidence of particular significance.

The records

Medical records from GPs, hospitals and other healthcare encounters, and care and social care records, are very likely to need to be interrogated to some extent, and potentially extensively and as early as practicable. These records may well contain limited material relevant to the question in issue, but that material can be very important insofar as it is there (including by reference to what is not there), and it will probably be in only a rare case that it can safely be assumed that the records will feature nothing of relevance.

What is relevant of course depends on the nature of the question mark over testamentary capacity. Evidence of confusion and lack of recall are obvious potential examples, and it may be that, simply by recording frequent contact with the testator, the records provide valuable evidence of behaviour, attitude and things that were said. Attention likely needs to be paid to how recorded behaviour and status evolved and over what time period relative to the making of the will.

Medical and other records may contain formal (if sometime short) assessments of cognition or capacity. These need to be treated with care, first because they give a snapshot in time and, second, because they will have been carried out for a specific reason that will give them greater or lesser relevance to the question of capacity to make a will.

Retrospective capacity assessments

An expert cannot, after the death of the testator, give a direct account bearing on their state of mind in the way that people who were there at the time and documents that were created at the time can. What a suitably qualified⁴ expert can do, however, is to interpret the material that already exists. Clearly, this evidence might be invaluable as to medical and other records and how they are to be understood, what they might say about capacity over time, and how this might interface with any factual evidence about what the testator thought, said and did. This is, however, subject to the fact that determining contested facts is a matter for the court.

It follows that the expert will only be as useful as the fullness of the material available for that expert to work with. If a testamentary capacity challenge is being advanced with conviction, and is contested, it is likely to call for expert evidence, but the question of when to instruct an expert may be not only a strategic one but also a pragmatic one: when will the expert have enough material to work with, and when will the advantage of potentially having a favourable expert report merit committing to the upfront cost?

Drawing together the threads

It should be apparent from what is said above (and is probably not surprising) that the weighing of evidence in a case about testamentary capacity is highly case specific and is a holistic exercise. What threads there are, and what tapestry emerges when they are drawn together, is a question that stands to be asked in each case. Early consideration of what specific basis for challenging testamentary capacity is being considered, what evidence might support or undermine it, and where the early priorities should lie in interrogating that evidence is, of course, highly desirable.

Oliver Mitchell
February 2026

Disclaimer

The material contained in this article is provided for general information purposes only. It does not constitute legal or other professional advice. No responsibility is assumed by any member of chambers for its accuracy or currency, and reliance should not be placed upon it. Specific, personal legal advice should be obtained in relation to any case or matter. Any views expressed are those of the editor or named author.

References

1. An analysis of the test of capacity as per in Banks v Goodfellow (1870) L.R. 5 Q.B. 549 is beyond the scope of this article. ↩︎
2. One useful recent discussion is in Hughes v Pritchard and others [2022] EWCA Civ 386, [2022] Ch. 339, at paragraphs 75 to 114, per Asplin LJ. ↩︎
3. See the discussion in Hughes v Pritchard at paragraphs 84 to 86. ↩︎
4. The choice of the expert’s specific field of expertise may, of course, depend on the putative basis or the nature of the apparent evidence for lack of capacity. ↩︎