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Client Intake Protocols: Detecting Capacity Issues and Undue Influence in the Shadow of MCA Reform

· 20 min

Executive Summary

Private client practitioners operate within an increasingly unstable legal framework for testamentary capacity assessment. The Law Commission's May 2025 Modernising Wills report recommends replacing the 155-year-old Banks v Goodfellow test with the Mental Capacity Act 2005 framework, yet no legislation has been introduced to Parliament as of January 2026.1 Simultaneously, proposed reforms to testamentary undue influence -- including judicial inference and burden-shifting -- would fundamentally alter the evidential landscape for will challenges.2 Against this backdrop, recent case law and disciplinary action underscore the consequences of inadequate intake procedures: a solicitor suspended for nine months in April 2025 for failing to assess capacity properly, and a will drafter's evidence dismissed as "worthless" in Leonard v Leonard.3 This article presents a dual-readiness protocol framework enabling practitioners to satisfy Banks v Goodfellow requirements while embedding MCA principles that will strengthen current practice and ensure readiness for statutory reform.

1. The Transitional Moment: Why Dual-Readiness Matters Now

England and Wales presently sustain an anomaly that the Law Commission has characterised as "unprincipled and confusing": two parallel tests for mental capacity operating across adjacent legal domains.4 For decisions concerning property, finances, and medical treatment, the Mental Capacity Act 2005 provides a codified, functional assessment framework underpinned by five statutory principles.5 For testamentary capacity -- the ability to make a valid will -- the common law test established in Banks v Goodfellow (1870) continues to govern, requiring assessment against four criteria formulated in the context of Victorian psychiatry.6

This duality has persisted for nearly two decades since the MCA came fully into force in October 2007. The Law Commission's Modernising Wills report, published 16 May 2025, recommends resolving the anomaly by adopting the MCA 2005 framework as the sole test for testamentary capacity, with tailored provisions specifying the "relevant information" a testator must understand.7 The Government's initial response welcomed the recommendations, but no legislative timetable has been confirmed, and a full response is expected by May 2026.8

For practitioners, this transitional period creates a distinctive compliance challenge. The temptation is to maintain existing procedures until legislation mandates change. Three factors militate against that approach.

First, the courts are already applying MCA principles as an interpretive lens. In Leonard v Leonard, the High Court confirmed that Banks v Goodfellow "very much remains good law" while noting that the MCA 2005 provides "a useful cross-check."9 The judgment broadened the first Banks limb to require understanding of specific testamentary provisions, not merely the general nature of will-making -- an evolution that aligns more closely with the MCA's decision-specific, functional approach.

Second, the BPS Mental Capacity Advisory Group published A Brief Guide to Assessing Testamentary Capacity in 2024, recommending that assessments of living persons should apply Banks v Goodfellow "having regard to" MCA principles.10 This cross-disciplinary guidance signals that expert witnesses are already using MCA-informed methodologies, and capacity evidence that fails to engage with those principles risks being found insufficient at trial.

Third, the disciplinary consequences of inadequate capacity assessment are demonstrably escalating. In April 2025, the Solicitors Disciplinary Tribunal suspended a solicitor for nine months for failing to properly assess a client's capacity, finding the misconduct created a "serious risk of harm" and ordering costs of GBP 21,129.60.11 The SRA's Competence Statement explicitly requires identification of, and reasonable steps to meet, the particular service needs of vulnerable clients; failure constitutes an aggravating factor in disciplinary proceedings.12

Practices that design intake protocols satisfying both the current Banks v Goodfellow four-limb test and the MCA 2005 functional framework -- the "dual-readiness" approach -- achieve three objectives simultaneously: compliance with binding authority, evidential robustness should the MCA test be enacted, and demonstrable adherence to SRA competence requirements.

The Banks v Goodfellow Four-Limb Test

The testator must demonstrate that they: (1) understand the nature of making a will and its effects; (2) understand the extent of the property being disposed of; (3) comprehend and appreciate the claims to which they ought to give effect; and (4) suffer no disorder of the mind that perverts their sense of right or prevents the exercise of natural faculties in disposing of property.6

Leonard v Leonard expanded the first limb beyond a general awareness of will-making to encompass understanding of the specific provisions being included.9 Clitheroe v Bond [2021] and Walker v Badmin [2015] confirmed Banks v Goodfellow as "the correct and only test" at Court of Appeal and High Court level respectively.13

The MCA 2005 Functional Framework

The MCA establishes a structured assessment through three interconnected provisions. Section 1 sets out five statutory principles, including the presumption of capacity and the requirement that all practicable steps be taken to support decision-making before concluding a person lacks capacity.5 Section 2 defines incapacity as the inability to make a decision "because of an impairment of, or a disturbance in the functioning of, the mind or brain" -- introducing the diagnostic threshold absent from Banks.14 Section 3 provides the functional test: a person is unable to make a decision if they cannot understand relevant information, retain it, use or weigh it, or communicate their decision.15

Critical Divergences for Intake Design

Three structural differences between the tests have direct implications for protocol design.

Presumption of capacity. The MCA's statutory presumption (section 1(2)) has no equivalent in Banks v Goodfellow, though Hughes v Pritchard [2022] confirmed that the propounder of a will executed with proper formalities enjoys an evidential presumption of due execution, from which capacity may be inferred.16 Dual-readiness protocols should document both the application of the presumption and the evidence supporting it.

Decision-specific assessment. The MCA requires assessment of capacity in relation to a particular decision at the time it falls to be made. Banks v Goodfellow is inherently decision-specific (testamentary capacity), but Leonard v Leonard has reinforced that the assessment must engage with the specific provisions of the will, not merely the general concept of testamentary disposal.9 This convergence supports protocols that scale assessment depth to the complexity of the testamentary scheme.

Supported decision-making. The MCA's principle that a person must not be treated as unable to make a decision unless all practicable steps to assist them have been taken (section 1(3)) has no direct analogue in Banks.5 However, embedding supported decision-making at intake strengthens the evidential record: contemporaneous attendance notes demonstrating that the practitioner offered communication aids, allowed adequate time, and adapted the meeting environment to the client's needs will carry significant weight with any court assessing capacity, regardless of which test applies.

The Law Commission's Bridging Mechanism

The draft Wills Bill proposes that "relevant information" for testamentary capacity under the MCA framework should include understanding the nature of making a will, the extent of the estate, and who might have a claim -- effectively preserving the substance of the Banks four-limb test within the MCA's functional structure.17 This design confirms that dual-readiness protocols need not choose between the tests; they can integrate both by assessing the MCA's functional criteria against the subject matter that Banks v Goodfellow identifies as relevant.

3. Building the Intake Protocol: From First Contact to File Closure

Structured Initial Assessment

Effective capacity screening begins before the client enters the meeting room. The intake protocol should incorporate a tiered assessment triggered by the referral circumstances and initial contact. Three categories warrant enhanced procedures: clients aged 80 or over (reflecting the Golden Rule's original scope); clients presenting with known or suspected cognitive impairment, sensory impairment, or communication difficulties; and clients where the instructions represent a significant departure from a previous testamentary pattern.

The BPS 2024 assessment guidance provides a structured checklist reconciling both the Banks v Goodfellow and MCA frameworks.10 For living clients, the BPS recommends applying the Banks criteria while having regard to MCA principles -- a practical synthesis that maps directly onto the dual-readiness approach. Incorporating the BPS checklist into the intake form ensures that the practitioner's questioning protocol covers both frameworks systematically.

The Golden Rule in Practice

Kenward v Adams (1975) established that for aged or seriously ill testators, the execution of a will should be witnessed or approved by a medical practitioner who has satisfied themselves of the testator's capacity and recorded their examination.18 Critically, this is a rule of good practice, not a rule of law -- compliance does not guarantee validity, and non-compliance does not invalidate a will. Sharp v Adam demonstrated the point: the Golden Rule was observed, yet the will was still declared invalid.18

Nonetheless, the Golden Rule remains a powerful evidential safeguard. Hughes v Pritchard [2022] held that a will drafted by an experienced practitioner with meticulous attendance notes should only be overturned on "the clearest evidence," and that the solicitor's contemporaneous evidence was of "considerable importance."16 The intake protocol should specify the triggers for invoking the Golden Rule, the process for instructing a medical assessment (including the information to be provided to the assessing clinician), and the timeframe within which the assessment must be completed.

On this last point, Feltham v Bouskell [2013] found a solicitor negligent for failing to chase a GP capacity report within a reasonable period; a five-week delay was held to constitute a breach of duty.19 The protocol should mandate documented follow-up at intervals no greater than ten working days.

Attendance Note Standards

The evidential significance of contemporaneous attendance notes cannot be overstated. Hughes v Pritchard and Leonard v Leonard represent the poles of practice quality: the former demonstrating how meticulous notes preserved a will against challenge, the latter revealing how absence of proper documentation led to a drafter's evidence being dismissed as "worthless."163

A dual-readiness attendance note should record, at minimum:

  • Date, time, location, and duration of the meeting, including who was present and, critically, whether any period was spent with the client alone.
  • Capacity indicators mapped to both frameworks: the client's understanding of the nature and effect of the will (Banks limb 1 / MCA "relevant information"); their knowledge of the approximate extent of their estate (Banks limb 2); their comprehension of potential claimants (Banks limb 3); and whether any impairment or disturbance was observed (Banks limb 4 / MCA diagnostic threshold).
  • MCA-specific elements: steps taken to support decision-making (communication aids, timing adjustments, provision of written summaries); evidence that the client could retain information for the duration relevant to the decision; evidence that the client could use or weigh the information; and the client's ability to communicate their decision.
  • Undue influence screening observations (addressed in Section 4 below).
  • Verbatim client statements where these illuminate capacity -- recording the client's own articulation of their testamentary wishes, in their own words, is among the most powerful forms of contemporaneous evidence.

Scaling Assessment to Complexity

Decision-specific assessment requires that the depth of the capacity evaluation corresponds to the complexity of the testamentary scheme. A straightforward will leaving the entire estate to a surviving spouse demands less granular assessment than a multi-trust arrangement disinheriting an adult child. The intake protocol should incorporate graduated assessment tiers:

  • Standard intake for straightforward dispositions with no indicators of concern.
  • Enhanced assessment where any capacity or undue influence indicator is present, requiring more detailed questioning, consideration of Golden Rule referral, and extended attendance notes.
  • Full independent assessment where multiple indicators are present or the testamentary scheme is complex, requiring medical assessment under the Golden Rule and, potentially, a capacity assessment by a specialist (psychologist or old-age psychiatrist).

4. Detecting Undue Influence at Intake: Current Law and Anticipating Reform

The Current Evidential Threshold

Under existing law, testamentary undue influence requires proof of actual coercion -- there is no presumption of undue influence for wills, unlike for lifetime gifts where equitable principles allow the court to infer influence from a relationship of trust and confidence.20 The challenger bears the entire burden of proof. In Rea v Rea [2024], the Court of Appeal overturned a High Court finding of undue influence, holding that a beneficiary's forceful personality does not equate to coercion, and that evidence of the testator's independent decision-making (rejecting suggestions, changing instructions independently) demonstrated the exercise of free will.20

This high threshold means that, under current law, evidence of undue influence gathered at intake serves a primarily protective function: documenting the testator's independence of instruction provides the strongest rebuttal to any subsequent challenge. However, the Law Commission's reform proposals would fundamentally alter this calculus.

The Proposed Reform: Inference and Burden-Shifting

The Modernising Wills report proposes three interconnected reforms to testamentary undue influence.2 First, courts should be empowered to infer undue influence where the evidence provides "reasonable grounds to suspect it." Second, once inferred, the burden would shift to the person propounding the will to rebut the inference. Third, a presumption of undue influence would arise where a relationship of trust or confidence exists and the influencer benefits significantly -- aligning the testamentary doctrine with equitable principles already applicable to lifetime gifts.

If enacted, these reforms would transform the role of intake documentation. A solicitor who fails to record evidence of independence at intake would face not merely a gap in the evidential record, but an inability to rebut an inference of undue influence that a court may draw from circumstantial evidence alone.

Red-Flag Taxonomy for Intake Screening

A structured taxonomy of undue influence indicators, embedded within the intake workflow, enables consistent screening across all fee-earners within a practice. The following indicators, derived from case law and regulatory guidance, should trigger enhanced investigation at intake:

Relational indicators:

  • A third party accompanies the client and attempts to remain present during instruction-taking, or speaks on the client's behalf.
  • The client has recently become dependent on the beneficiary for care, accommodation, or financial management.
  • The client has changed their usual professional adviser at the suggestion of a beneficiary.
  • The proposed will significantly benefits a person in a position of trust (carer, attorney, financial adviser).

Instructional indicators:

  • The instructions represent a substantial departure from a previous testamentary pattern without a clear, client-articulated rationale.
  • The client appears rehearsed or uses language that does not correspond to their educational or professional background.
  • The instructions are provided in writing by a third party, or the client defers to a third party when asked to clarify their wishes.
  • There is urgency to execute the will that originates from a person other than the client.

Contextual indicators:

  • The client has recently experienced a bereavement, serious illness, or relocation that has increased their dependence on the beneficiary.
  • There is evidence of isolation from family members or previous social networks.
  • Previous powers of attorney or deputyship orders are in place in favour of a person who benefits under the proposed will.

Independence of Instruction: Procedural Safeguards

The intake protocol should mandate that the client is seen alone for a meaningful portion of the initial meeting. Where the client cannot communicate without assistance, the Law Society's guidance recommends using an independent advocate rather than a family member, particularly where the family member is a beneficiary.21 The attendance note must record: (a) that the client was seen alone; (b) the duration of the private consultation; (c) whether any accompanying person was asked to leave and, if so, their reaction and the client's response; and (d) the client's articulation of their testamentary wishes in the absence of any third party.

Where red-flag indicators are present, the protocol should require a follow-up meeting -- ideally at a different location or with a different configuration of attendees -- to verify consistency of instructions. Inconsistency between meetings does not, of itself, establish undue influence, but consistency provides a powerful evidential foundation for the proposition that the testator exercised independent testamentary freedom.

5. Dual-Readiness: Operationalising the Transition

Integrating MCA Principles into Current Practice

The dual-readiness approach does not require practitioners to abandon Banks v Goodfellow; it requires them to supplement it. Four MCA principles can be embedded within existing intake procedures with immediate benefit.

Presumption of capacity. Opening the intake record with an affirmative statement that capacity is presumed, followed by a structured assessment, demonstrates compliance with the MCA's first principle while establishing the evidential starting point for any future challenge.5

Supported decision-making. Recording the steps taken to assist the client -- providing information in accessible formats, allowing additional time, conducting the meeting in a familiar environment -- addresses MCA section 1(3) and produces evidence that any finding of incapacity was reached only after all practicable assistance was provided.5

Decision-specific assessment. Structuring the capacity evaluation around the specific decisions the client is making (the choice of beneficiaries, the allocation of assets, the appointment of executors and trustees) rather than a global assessment of mental function aligns with MCA section 3 and the expanded interpretation of Banks limb 1 in Leonard v Leonard.159

Functional, not diagnostic, assessment. The MCA's prohibition on determining capacity by reference to a person's condition alone (section 2(3)) reinforces that a diagnosis of dementia, for example, does not equate to a finding of incapacity.14 The intake protocol should remind practitioners to focus on what the client can demonstrate in terms of understanding, retention, and reasoning, not on their medical history in isolation.

The BPS Checklist as a Bridging Tool

The BPS 2024 Brief Guide to Assessing Testamentary Capacity provides a practical mechanism for bridging the two frameworks.10 Its assessment checklist addresses both the Banks four-limb criteria and the MCA's functional elements, enabling the practitioner to produce a single attendance note that satisfies both tests. Incorporating this checklist into the intake form -- whether as a template within the case management system or as a physical pro-forma -- ensures that no element of either framework is inadvertently omitted.

Training and Competence

The SRA's vulnerability guidance and the Law Society's practice notes on working with clients who may lack mental capacity establish a clear competence baseline.1221 Practices implementing dual-readiness protocols should consider three training priorities: ensuring all fee-earners who take will instructions can articulate both the Banks and MCA tests and explain how the intake protocol addresses each element; developing competence in recognising cognitive impairment indicators at first contact (changes in affect, repetition, confabulation, suggestibility); and familiarising practitioners with the BPS 2024 checklist and the circumstances in which specialist psychological assessment should be commissioned.

Conclusion: From Compliance Obligation to Practice Differentiation

The convergence of Law Commission reform proposals, evolving case law, and regulatory enforcement creates a compliance imperative that extends beyond procedural adjustment. Hughes v Pritchard demonstrates that meticulous intake documentation can preserve a will against determined challenge;16 Leonard v Leonard demonstrates that its absence can render a practitioner's evidence valueless.3 The nine-month suspension imposed in April 2025 confirms that the SDT regards capacity assessment failures as serious misconduct warranting significant sanctions.11

Dual-readiness intake protocols -- designed to satisfy Banks v Goodfellow while embedding MCA 2005 principles -- represent both a risk mitigation strategy and a marker of professional competence. They produce more robust contemporaneous evidence, align with the BPS's cross-disciplinary assessment methodology, and position the practice for compliance under any future legislative framework. For practices operating in a contentious probate environment where will challenges are increasingly frequent and well-funded, the quality of the intake protocol is no longer a matter of administrative preference. It is the single most important determinant of evidential resilience.

CPD Declaration

Estimated Reading Time: 18 minutes Technical Level: Advanced Practice Areas: Wills and Probate, Elder Law, Private Client, Practice Management

Learning Objectives

Upon completing this article, practitioners will be able to:

  1. Distinguish between the Banks v Goodfellow four-limb test and the MCA 2005 functional capacity framework, identifying the structural divergences relevant to intake protocol design.
  2. Apply a dual-readiness methodology to client intake procedures that satisfies current binding authority while anticipating the Law Commission's proposed statutory reform.
  3. Evaluate client presentations against a structured red-flag taxonomy for testamentary capacity concerns and undue influence indicators at the intake stage.
  4. Design attendance note templates that capture the evidential elements required under both the Banks v Goodfellow and MCA 2005 frameworks, incorporating the BPS 2024 assessment checklist.
  5. Assess the professional negligence and regulatory exposure arising from inadequate capacity assessment procedures, with reference to current SDT sanctions and case law.

SRA Competency Mapping

  • SRA Competence Statement, Section 2 (Technical Legal Practice): Ability to identify and take reasonable steps to meet the particular service needs of vulnerable clients.
  • SRA Code of Conduct for Solicitors, Principle 7: Acting in the best interests of the client, including those who may lack capacity.
  • SRA Guidance on Accepting Instructions from Vulnerable Clients: Documented steps to determine capacity where doubts arise.

Reflective Questions

  1. How would you assess whether your current intake protocol captures sufficient evidence to withstand challenge under both the Banks v Goodfellow test and a potential MCA-based statutory framework?
  2. What training gaps exist within your practice regarding the recognition of undue influence indicators at the client intake stage, and how might the proposed burden-shifting reforms alter your approach?
  3. In what circumstances would you commission an independent psychological assessment rather than relying on a GP capacity report under the Golden Rule, and how does the BPS 2024 guidance inform that decision?

Professional Disclaimer

The information presented reflects the regulatory and legislative position as of 27 January 2026. Regulations, tax rules, and professional guidance are subject to change. Readers should independently verify all information before acting and seek advice from appropriately qualified solicitors, financial advisors, or other professionals for their specific circumstances.

Neither WUHLD nor the author accepts liability for any actions taken or decisions made based on the content of this article. Professional readers are reminded of their own regulatory obligations and duty of care to their clients.

Footnotes

Footnotes

  1. Law Commission, Modernising Wills: Final Report (16 May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report/ ↩

  2. Law Commission, Modernising Wills: Final Report, Chapter on Undue Influence (16 May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report/ ↩ ↩2

  3. Leonard v Leonard [2024] EWHC 321 (Ch). https://www.bailii.org/ew/cases/EWHC/Ch/2024/321.html; Fifty Six Law, Leonard v Leonard: High Court Confirms Banks v Goodfellow Test for Testamentary Capacity Remains Supreme (2024). https://www.fiftysixlaw.co.uk/leonard-v-leonard-high-court-confirms-banks-v-goodfellow-test-for-testamentary-capacity-remains-supreme/ ↩ ↩2 ↩3

  4. Law Commission, Modernising Wills: Summary of the Report (16 May 2025). https://lawcom.gov.uk/publication/modernising-wills-summary-of-the-report/ ↩

  5. Mental Capacity Act 2005, s.1. https://www.legislation.gov.uk/ukpga/2005/9/section/1 ↩ ↩2 ↩3 ↩4 ↩5

  6. Banks v Goodfellow (1870) LR 5 QB 549. https://www.mentalhealthlaw.co.uk/Banks_v_Goodfellow_(1870)_LR_5_QB_549 ↩ ↩2

  7. Law Commission, Modernising Wills: Final Report -- Volume II: Draft Bill for a New Wills Act (16 May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report-volume-ii-draft-bill-for-a-new-wills-act/ ↩

  8. Government Initial Response to Law Commission Modernising Wills Report (May 2025); LawFuel, Modernising Wills Law: The Continuing Impact of the Wills Bill 2025. https://www.lawfuel.com/modernising-wills-law-the-continuing-impact-of-the-wills-bill-2025/ ↩

  9. Leonard v Leonard [2024] EWHC 321 (Ch). https://www.bailii.org/ew/cases/EWHC/Ch/2024/321.html; Foot Anstey, Assessing Testamentary Capacity: Lessons from Leonard v Leonard (2024). https://www.footanstey.com/our-insights/articles-news/assessing-testamentary-capacity-lessons-from-leonard-v-leonard/ ↩ ↩2 ↩3 ↩4

  10. British Psychological Society, A Brief Guide to Assessing Testamentary Capacity (2024). https://explore.bps.org.uk/content/report-guideline/bpsrep.2024.rep175 ↩ ↩2 ↩3

  11. Law Gazette, Suspension for Failing to Properly Assess Client's Capacity (April 2025). https://www.lawgazette.co.uk/news/suspension-for-failing-to-properly-assess-clients-capacity/5124387.article ↩ ↩2

  12. SRA, Meeting the Needs of Vulnerable People. https://www.sra.org.uk/solicitors/resources/specific-areas-of-practice/meeting-needs-vulnerable-people/ ↩ ↩2

  13. Walker v Badmin [2014] EWHC 71 (Ch); [2015] WTLR 493. https://www.step.org/industry-news/high-court-dismisses-mca-2005-test-testamentary-capacity; Clitheroe v Bond [2021] EWHC 1102 (Ch). https://radcliffechambers.com/clitheroe-v-bond-2021-ewhc-1102-ch/ ↩

  14. Mental Capacity Act 2005, s.2. https://www.legislation.gov.uk/ukpga/2005/9/section/2 ↩ ↩2

  15. Mental Capacity Act 2005, s.3. https://www.legislation.gov.uk/ukpga/2005/9/section/3 ↩ ↩2

  16. XXIV Old Buildings, A Return to Normality in the Law of Testamentary Capacity: Hughes v Pritchard [2022] EWCA Civ 386. https://xxiv.co.uk/a-return-to-normality-in-the-law-of-testamentary-capacity-hughes-v-pritchard-2022-ewca-civ-386/ ↩ ↩2 ↩3 ↩4

  17. Law Commission, Modernising Wills: Final Report -- Volume II: Draft Bill for a New Wills Act (16 May 2025). https://lawcom.gov.uk/publication/modernising-wills-final-report-volume-ii-draft-bill-for-a-new-wills-act/ ↩

  18. Ashfords, Testamentary Capacity: The Golden Rule -- Case Law Update (2022). https://www.ashfords.co.uk/insights/articles/testamentary-capacity-the-golden-rule-case-law-update-boast-v-ballardi-ors-2022 ↩ ↩2

  19. Feltham v Bouskell [2013] EWHC 1952 (Ch); 39 Essex Chambers case analysis. https://www.39essex.com/information-hub/case/lorraine-studholm-feltham-v-freer-bouskell ↩

  20. Brabners, Determining Undue Influence in Rea v Rea in the Court of Appeal (2024). https://www.brabners.com/insights/will-inheritance-disputes/determining-undue-influence-in-rea-v-rea-in-the-court-of-appeal ↩ ↩2

  21. Law Society, Working with Clients Who May Lack Mental Capacity. https://www.lawsociety.org.uk/en/topics/client-care/working-with-clients-who-may-lack-mental-capacity ↩ ↩2