Testamentary Capacity Evaluations for Estate Planning
America is entering the largest intergenerational transfer of wealth in history. Trillions of dollars are in motion, and with that comes a growing wave of estate conflict — not just over what is being left, but how it was decided.
In high-net-worth families, the biggest threat to a well-structured estate plan is often a future allegation that the testator lacked mental capacity or was manipulated when signing.
These challenges can unravel an otherwise bulletproof estate strategy. They don’t just target the client’s wishes — they target the judgment of the drafting attorney, the credibility of fiduciaries, and the stability of families.
That’s why leading estate attorneys are no longer waiting for capacity to be questioned. They’re documenting it before the ink dries.
At Dr. Long & Associates, we provide independent mental capacity and undue influence evaluations for estate planning clients — with findings structured to meet evidentiary standards should litigation arise. We operate nationwide via secure telehealth under the PSYPACT compact (APIT #8593), and we work directly with attorneys, fiduciaries, and family offices seeking to minimize risk while preserving autonomy.
Why Proactive Planning Isn’t Optional Anymore
For years, estate planners have focused on tax efficiency, asset protection, and honoring client intent. But there’s another threat that’s grown quietly — and now, it’s in plain sight.
Contested wills are no longer rare. They’re rising steadily, and Google search data proves it. Families are fighting more. Heirs are lawyered up. And every estate plan — especially complex or high-net-worth ones — now carries real litigation exposure.
If you need proof, look at the trend line below. This is what your clients’ children, former spouses, or estranged siblings are Googling.
"Google Trends chart showing rising search interest in 'How to Contest a Will' from 2010 to 2025 in the United States, illustrating the growing risk of estate litigation."
What Is “Mental Capacity”? And Why It’s Not a Single Standard
“Does this client have mental capacity?” That’s a question estate planners hear — and ask — often. But the answer depends entirely on what kind of capacity you're talking about.
In law and psychology, mental capacity is not one unified concept. It’s a broad term that covers several distinct legal thresholds, each tied to a specific function:
Medical decision-making capacity – can the person understand, appreciate, and consent to treatment?
Contractual capacity – can they understand rights and obligations under a legal agreement?
Donative capacity – can they understand the nature and consequences of gifting assets?
Capacity to appoint or revoke a power of attorney – can they grasp the authority and implications of delegating decision-making?
Testamentary capacity – can they understand the nature and consequences of making a will or trust?
Each of these standards has its own legal definition and clinical implications. They exist on a spectrum, and the bar is not the same across categories.
For example, a person may lack the capacity to manage complex business decisions, but still retain the capacity to execute a will. That’s not a loophole — it’s the law. And it reflects a core principle of estate jurisprudence: that personal autonomy, even late in life or amid mild impairment, is to be protected whenever possible.
Understanding this nuance is critical for attorneys and advisors who want to protect their clients — and their documents — from downstream challenges.
That’s where testamentary capacity comes in. It’s the legal threshold that governs wills, revocable trusts, and other dispositive documents — and it’s the focus of the next section.
What Is Testamentary Capacity?
Testamentary capacity is the legal standard for determining whether someone is mentally competent to execute a will or estate planning document. It’s not a clinical diagnosis. It’s a legal question, with a clear (and surprisingly low) threshold.
Most jurisdictions follow some variation of the Banks v. Goodfellow standard, which requires that, at the time of execution, the person must:
Understand the nature and purpose of the document they’re signing (e.g., a will or trust),
Know the nature and extent of their property,
Recognize the natural objects of their bounty — typically, close family members or dependents,
Form a rational plan for distributing their assets.
That’s it. No requirement to balance a checkbook. No obligation to recall every account number. No need to pass a memory test.
And critically: testamentary capacity can exist even in the presence of cognitive impairment, psychiatric illness, or idiosyncratic thinking — as long as the core legal criteria are met at the time of execution.
This is where inexperienced clinicians, and even well-meaning family members or advisors, often get it wrong. They assume that a dementia diagnosis or signs of forgetfulness automatically disqualify someone from making estate decisions.
But the law says otherwise.
That’s why it’s essential that any evaluation of capacity in this context be conducted using the correct legal standard, not a medical one. The role of a qualified evaluator is not to judge the wisdom of the plan — but to determine whether the person had the mental ability to understand and choose it.
This distinction matters — because if the wrong standard is applied, the entire plan could be called into question, even if it reflected the testator’s true wishes.
This is also where estate attorneys must be deliberate — not only in whether capacity is evaluated, but in how and by whom. Not all clinicians are equipped for this work. Treating providers, general psychologists, or neuropsychologists unfamiliar with estate litigation may use clinical standards that are too high, too vague, or simply irrelevant. Worse, they may create documentation that invites challenge rather than prevents it.
In reality, most attorneys have two options:
They can search online and find someone offering a “capacity letter” for a few hundred dollars — often a treating provider or lightly credentialed psychologist with no forensic training and no grasp of the relevant case law. These letters may check a box, but they don’t hold up in court, and sometimes even trigger litigation by raising more questions than they resolve.
Or, they can retain a true independent evaluator — typically a forensic psychologist — who understands how to apply the correct legal standard, who conducts a structured interview tied to legal-functional criteria, and who drafts a report that reflects the jurisdictional threshold clearly and defensibly. These reports don’t just document capacity. They protect it.
A properly structured capacity evaluation requires not just psychological expertise, but a clear understanding of legal standards, evidentiary thresholds, and the practical demands of probate. In a later section, we’ll outline how attorneys can protect their clients and themselves by retaining evaluators the right way — with clarity on scope, neutrality, and documentation.
Scope of a Testamentary Capacity Evaluation
Evaluating testamentary capacity requires more than just checking a cognitive screening box or asking a few orientation questions. It’s a structured process that maps clinical observations to legal-functional criteria. At Dr. Long & Associates, our evaluations are designed to answer one central question:
Did the individual have the mental ability to understand, decide, and communicate a coherent estate plan at the time of execution?
Our evaluations are neutral, legally grounded, and structured to withstand evidentiary scrutiny. Each is tailored to the specific client context — but typically includes:
Clinical Interview: A semi-structured interview that explores the four legal prongs of testamentary capacity: nature of the document, awareness of assets, recognition of heirs, and rationale for distribution.
Cognitive Screening (when relevant): We do not default to cognitive testing — but when memory loss, dementia, or medical conditions are present, brief screening tools help contextualize decision-making.
Document Review: We review the draft will, trust, or estate plan to evaluate whether the client’s understanding aligns with the proposed distribution.
Medical and Psychiatric Record Review: Past diagnoses, medications, or prior hospitalizations are examined to determine whether cognitive concerns existed, and how they may have affected function at the time of execution.
Forensic Report: Every evaluation results in a written report that explains the methods used, the findings observed, and the legal standard applied. It does not render legal conclusions — but it offers a structured opinion based on evidence.
These evaluations are not therapy. They are not memory screenings. They are legal-functional assessments designed for attorneys who want to proactively document capacity — and protect both the client and the plan from future challenge.
How to Retain the Right Evaluator — Without Creating More Risk
When it comes to capacity evaluations, how you retain the expert matters just as much as who you choose.
Most estate attorneys don’t want to become litigation strategists — and they don’t have to. But they do need to make one strategic decision early: work with someone who specializes in testamentary capacity evaluations.
You can start by simply doing the research:
If the provider doesn’t offer testamentary capacity evaluations as a dedicated service — walk away.
If they don’t understand the difference between medical capacity and legal capacity — walk away.
If they offer templated “capacity letters” with no legal framework or forensic methodology — run.
A qualified evaluator will:
Understand the relevant legal standards for your jurisdiction,
Be transparent about their methods,
And communicate with you like a fellow professional, not a vendor.
Once you’ve identified the right evaluator, retain them clearly and formally — under your name, not your client’s or their family’s. That small step preserves your flexibility. If the evaluator’s report raises concerns, or the fit isn’t right, you’re not locked in. You can walk away without risking the report being discoverable or misused. Retaining the right evaluator isn’t about creating legal insulation — it’s about doing your due diligence as counsel. It protects your client, their estate plan, and your role in the process.
So how much does a testamentary capacity evaluation cost?
Yes, you can find providers offering “capacity letters” for $1,200 or less — often without reviewing the estate plan, conducting a legally grounded interview, or even applying the correct jurisdictional standard. These letters are rarely respected by experienced litigators, and they’re often the first thing opposing counsel uses to raise doubt.
In contrast, a comprehensive evaluation — one that includes record review, cognitive screening (when appropriate), legally grounded interviewing, and a properly structured, jurisdiction-specific report — will typically range from $3,000 to $6,000, depending on the complexity of the plan and the client’s presentation.
That’s not an incidental cost. It’s an investment in protecting your client from avoidable litigation, and in some cases, protecting yourself from being the first name on the subpoena.
A qualified forensic psychologist does more than assess cognition. They review the estate plan. They apply the correct legal standard. They evaluate the testator’s understanding in context — not in isolation. And they produce a report designed to serve as a shield, should the estate ever be challenged. Because if the estate plan matters — and the family’s legacy is on the line — then the evaluation shouldn’t be an afterthought. It should be an asset.
Conclusion: Protect the Plan. Preserve the Intent.
The true value of a testamentary capacity evaluation isn’t in the paperwork — it’s in what it prevents.
A well-structured, legally sound evaluation protects the testator’s intent, insulates the attorney from downstream challenge, and provides a clear, defensible record if the plan is ever contested. And in high-net-worth estates, where the stakes are measured in millions and family dynamics are often complex, that protection isn’t optional — it’s essential.
As estate litigation becomes more common and more sophisticated, the attorneys who thrive will be those who anticipate conflict and structure their files accordingly. That starts with who you choose to evaluate capacity — and how you retain them.
At Dr. Long & Associates, we work with attorneys, fiduciaries, and planning professionals across the country to deliver clear, court-ready evaluations tailored to the standards that actually govern these cases. Whether you're drafting an estate plan today or preparing for the possibility of challenge tomorrow, we’re here to help you do it right — from the beginning.
Testamentary Capacity Case Law in U.S. Jurisdictions
The legal standard for testamentary capacity is intentionally minimal — designed to protect individual autonomy while ensuring that wills reflect rational intent. The doctrine is consistent across jurisdictions, rooted in common law, and reaffirmed in countless probate decisions. Below are the most authoritative cases by jurisdiction.
🏛 Common Law Foundation
Banks v. Goodfellow, LR 5 QB 549 (1870)
The seminal English case adopted by nearly every U.S. jurisdiction. It established that a valid will requires that the testator:
Understand the nature of the act of making a will;
Know the extent of their property;
Recognize the natural objects of their bounty; and
Be free from delusions or mental illness that distort judgment regarding property distribution.
🡒 Still cited as the doctrinal backbone for testamentary capacity in U.S. appellate courts and restatements.
🌴 Florida
Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1997)
Reaffirmed Florida’s adherence to the Banks v. Goodfellow standard. Held that:
Testamentary capacity can exist despite mental illness or eccentric behavior;
Capacity must be assessed at the time of execution;
Lucid intervals are legally sufficient.
🡒 A leading case cited in capacity and undue influence litigation across Florida probate courts.
🌉 California
Anderson v. Aronsohn, 200 Cal. App. 2d 406 (1962)
Clarified that:
Testamentary capacity is not defeated by age, poor health, or even dementia unless there’s direct evidence that the testator failed to meet capacity elements at execution;
Testamentary capacity is a narrower standard than general mental competency.
🡒 Frequently used by California courts to distinguish cognitive decline from legal incapacity.
🗽 New York
Matter of Kumstar, 66 N.Y.2d 691 (1985)
Held that:
A testator need only have a modest understanding of their property, heirs, and the act of making a will;
Even moderate cognitive impairments do not defeat capacity unless they prevent this understanding.
🡒 The benchmark NY decision for evaluating capacity and rebutting challenges rooted in mild dementia or forgetfulness.
📘 Restatement of Law (Modern Authority)
Restatement (Third) of Property: Wills and Other Donative Transfers § 8.1
Mirrors Banks v. Goodfellow and synthesizes decades of U.S. case law. Requires that the testator:
Understand the nature and extent of their property;
Know the natural objects of their bounty;
Understand the disposition they are making; and
Be capable of relating these elements in a coherent plan.
🡒 Frequently cited in academic and judicial discussions as a modern restatement of common law principles.
Coming Soon: Undue Influence Evaluations – Part Two
While testamentary capacity is often the legal threshold for executing a will or trust, undue influence is the pressure that often challenges it. It's legally distinct, harder to spot, and frequently exploited in high-net-worth estate planning scenarios — especially when caregiving, dependency, or family estrangement is involved.
In Part Two of this series, we’ll break down:
How courts evaluate undue influence
What red flags to watch for in family dynamics
The forensic tools used to document (or rule out) coercion
And how proactive evaluations can help prevent litigation before it starts
If this article helped clarify the role of capacity evaluations, Part Two will show how to go even deeper into protecting intent — and preventing challenge.