Retrospective capacity assessments for disputed wills and gifts
Our psychiatrists use the records and witness evidence to give an opinion on capacity at the date in dispute.
Expert type
- Old age psychiatrist
- General adult psychiatrist
- Neuropsychiatrist
- Learning disability psychiatrist
Applicable law
- Banks v Goodfellow (1870) LR 5 QB 549
- Re Beaney [1978] 1 WLR 770
- Mental Capacity Act 2005, sections 1 to 3
- CPR Part 35 and COP Rules Part 15
When needed
When a will, lifetime gift, lasting power of attorney or contract is challenged on the basis that the person lacked capacity when they made it.
What is a retrospective capacity assessment?
A retrospective capacity assessment is a psychiatrist’s opinion on whether a person had capacity to make a particular decision at a past date.
Our experts report on capacity in disputes over:
- Wills – contested probate claims, including wills made during illness or shortly before death
- Lifetime gifts – transfers of money or property, including the family home
- Lasting powers of attorney – whether the donor had capacity when signing the instrument
- Contracts and marriage – capacity at the date of the transaction or the ceremony
Where the person is still alive but has since lost capacity, the expert can also assess them now, in person or remotely, and use those findings in the opinion on the earlier date.
What the expert works from
The opinion rests on records made at or near the relevant date.
GP records
Consultations, memory concerns, cognitive test scores and referrals around the relevant date.
Hospital and memory clinic records
Admissions, diagnoses, brain scans and specialist assessments.
The will file
The will-drafter’s instructions, attendance notes and any capacity assessment made at the time.
Witness statements
Accounts from family, carers, friends and professionals who saw the person at the time.
Medication records
Prescriptions and drug charts, including sedatives, opioids and other medication that affects cognition.
Care home and nursing notes
Daily entries on orientation, mood, behaviour and communication.
Conditions that may affect capacity
We match the expert’s specialty to the condition in the records.
Capacity can fluctuate, so the expert looks closely at the days around the decision, including any infection or change in medication.
How it works
Send the case details
Tell us the decision in dispute and its date, online or by phone.
Choose your expert
We send expert CVs and quotes before you instruct.
Instruct and send the records
Send the letter of instruction with the records and witness statements.
Receive the report
The expert prepares the report to CPR Part 35 for a probate claim, or to COP Part 15 for the Court of Protection.
The legal tests
| Decision | Test the expert addresses |
|---|---|
| Will | Banks v Goodfellow (1870) LR 5 QB 549 |
| Lifetime gift | Re Beaney [1978] 1 WLR 770: the understanding required depends on the transaction, and for a gift of the donor’s only asset of value it is as high as for a will |
| Lasting power of attorney | Mental Capacity Act 2005, section 9(2)(c), applying sections 2 and 3 |
| Other decisions under the Act | Mental Capacity Act 2005, sections 2 and 3 |
What the report covers
The report shows which records support each conclusion.
Common questions
Need a retrospective capacity report?
We send expert CVs and quotes before you instruct.
Related mental capacity services
Capacity to make a will, assessed during life or after death.
Lifetime gifts of money, land and the family home.
Capacity to manage property and affairs or make a lasting power of attorney.
Psychiatric evidence on vulnerability to pressure and coercion.
Capacity and best interests evidence for the Court of Protection.
Experts in dementia and mental illness in later life.