When you’re making a Will or signing a Lasting Power of Attorney (LPA), the question that matters is simple: did you have capacity at the moment you gave instructions and signed? Capacity is time-specific and decision-specific. If it’s ever challenged later (often after someone has died, or when a family dispute flares up), what protects you isn’t “what everyone assumed” — it’s the evidence trail.
This matters more than ever because cognitive impairment is common. In England alone, 498,926 people had a formal dementia diagnosis as of April 2025. And diagnosis aside, capacity can fluctuate because of infection, medication, stress, hospital stays, or simply the time of day.
So, if capacity could be questioned, your goal is to create a calm, compliant process with records that are clear enough to stand up in a dispute. In practice, the 3 most useful tools are:
- strong attendance notes
- sensible, consent-based video (or audio)
- the right medical letter, requested the right way
If you’re planning a Will, start with the basics on Atalaw’s Wills page — they note that 7 out of 10 adults do not have a will, which is exactly why sorting yours early (while capacity is clearly solid) is often the simplest risk-reduction step you can take.
What “capacity on the day” actually means
Capacity isn’t about whether you have a diagnosis. It’s about whether, at the time of the decision, you can:
- understand the relevant information
- retain it long enough to make the decision
- use or weigh it as part of the decision
- communicate your decision (in any way)
That framework is the backbone of the Mental Capacity Act approach in practice.
For Wills, the legal test is usually discussed through Banks v Goodfellow (1870). The key point is still the same: you need to understand what you’re doing, the extent of your assets (broadly), and who might expect to benefit — and you must be free from a disorder of the mind that poisons decision-making.
That’s why the evidence has to be decision-focused. A person may have the capacity to make a Will but struggle with complex financial arrangements. Or they may be fine in the morning and exhausted by late afternoon.
1) Attendance notes that actually protect you
A good attendance note is not “client seemed fine”. It’s a structured record that shows how you reached the conclusion that the client understood and decided freely.
What your attendance note should capture
If you’re the client, you can expect your solicitor to cover points like these (and if you’re arranging things for a relative, this is what you should want to see):
- Who was present and why (and who was kept out of the room)
- How instructions were taken (in person, video call, home visit, hospital visit)
- How identity was verified
- Any vulnerabilities (hearing, sight, language, memory, mobility) and the adjustments made
- Communication style (plain English, short questions, breaks, written prompts)
- The client’s own words explaining what they want and why
- The “why now?” explanation if there’s a sudden change from a previous Will
- A capacity mini-check embedded naturally in the conversation (see below)
- Undue influence checks: was anyone pressuring them, hovering, answering for them, controlling access?
A simple capacity mini-check (that feels natural)
A strong note often reflects questions like:
- “Tell me, in your own words, what we’re signing today.”
- “What do you understand a Will/LPA to do?”
- “Who are the people you’d normally expect to benefit from your estate?”
- “What is your relationship with them?”
- “If someone disagrees with this later, what would you say is your reason?”
The point isn’t to interrogate you. It’s to demonstrate that you understood, weighed up options, and made a decision that is yours.
The “Golden Rule” mindset
Where capacity might be in doubt (because of age, illness, diagnosis, or concern raised), solicitors often follow the “Golden Rule” approach: take extra steps, including medical input, so the file is “dispute-ready”. Guidance for practitioners emphasises careful attendance notes and clear evidence where capacity may be questioned.
If you’re looking at Will planning in the context of dementia, Atalaw’s Alzheimer-focused resources are a useful read — for example, Choosing executors and trustees when a testator has Alzheimer’s.
2) Video (or audio) evidence: helpful when used properly
A short video can be powerful because it captures tone, clarity, and independence in a way paper can’t. But it needs to be done carefully.
When video helps most
Video tends to be most helpful when:
- the Will is unusual (e.g., big changes, exclusions, carer involvement)
- there’s known family conflict
- capacity may fluctuate
- instructions are taken remotely (or in a pressured environment like hospital)
What a “safe” recording looks like
If recording is used, it should be:
- with clear consent (and recorded consent at the start)
- calm, uninterrupted, and private
- focused on the basics: what you’re doing, who you want to benefit, and why
- stored securely (GDPR matters — see Atalaw’s Privacy Policy)
A recording should never replace proper legal work. It supports it.
A simple alternative: audio + a strong file note
If video feels too intrusive, an audio recording plus a detailed attendance note is often a good compromise — especially if the client is anxious on camera.
3) Medical letters that carry real weight (and don’t waste time)
A medical letter can strengthen a file — if you ask for the right thing.
What to request (and what to avoid)
A helpful letter is:
- decision-specific (“capacity to make a Will today” / “capacity to grant an LPA today”)
- based on a contemporaneous assessment (ideally close to signing)
- clear about the clinician’s findings and the basis for them
What you want to avoid is a vague “X has dementia but seems okay”. That’s not the legal question.
Who pays, and what does it cost?
Many GP practices charge for non-NHS letters and reports. Published fee lists commonly show around £30 for a brief letter, and £60+ for a report, with more for longer or specialist work.
Some practices list a mental capacity assessment fee around £165. The BMA also publishes guidance for GPs on fees and handling report requests.
So, it’s sensible to budget £30–£200+, depending on what’s needed and how urgent/complex it is — and to plan ahead so you’re not trying to rush it in a week.
Timing matters
If capacity fluctuates, a letter from 6 months ago may carry limited weight. A letter close to signing is usually more persuasive.
If you’re setting up an LPA, you may want to read Atalaw’s pages on Joint Lasting Power Of Attorney Solicitors and Business Lasting Power Of Attorney Solicitors, because capacity issues don’t only affect families — they can cause serious disruption in business too.
A practical “on the day” checklist (what you should expect)
Before the appointment
- pick the best time of day (morning is often better if cognition dips later)
- make sure the client has eaten, has water, and isn’t in pain
- ask the solicitor to see the client alone for instructions
- gather background: previous Will, family tree, asset overview, key reasons for change
During the appointment
- short, clear questions
- avoid leading prompts from family
- breaks if needed
- record the core understanding: what, who, why
After the appointment
- tidy the file: attendance note finalised same day
- store any recordings securely
- confirm instructions in writing (plain-English summary)
If a dispute arises later, this is the material that tends to matter — especially if the case becomes contentious and moves toward formal proceedings (see Atalaw’s Civil litigation page for the broader disputes context).
Common mistakes that weaken capacity evidence
- leaving beneficiaries in the room “to help”
- letting someone else speak for the client
- no written rationale for a major change
- relying on an old medical note rather than a timely, decision-specific assessment
- no record of how understanding was checked
- rushing the signing because of pressure from relatives or deadlines
FAQs
1) Do you need a doctor’s letter every time you make a Will?
No. Plenty of people make Wills without any medical involvement. You normally consider medical evidence where there’s a real risk of challenge — for example, known cognitive impairment, fluctuating capacity, major and unexpected changes, or high-conflict family dynamics. The key is proportionality: you want safeguards that fit the risk.
2) Is a video enough to prove capacity?
A video can help, but on its own it’s rarely enough. A short recording shows presentation and confidence, but it doesn’t replace a well-kept file: attendance notes, clear instructions, and (where needed) medical evidence. Think of video as support, not a substitute.
3) What if the person has dementia — can they still make a Will?
A diagnosis alone doesn’t automatically prevent a person from making a Will. The question is whether they had capacity at the time of giving instructions and signing. This is where timing, safeguards, and good evidence matter most. Atalaw’s Alzheimer-focused Will resources (like Choosing executors and trustees when a testator has Alzheimer’s) are a helpful starting point.
4) Who should be present when instructions are taken?
Ideally, just you and the solicitor for the main instruction-taking. Support can be provided for accessibility (language, hearing, mobility), but you want the file to clearly show you gave instructions independently, without pressure.
5) How much does a GP letter usually cost in the UK?
It varies by practice and by the type of report. Many published fee lists show around £30 for a short “to whom it may concern” letter and £60–£120+ for reports, with some listing mental capacity assessments around £165. Always ask the practice for their current fee and expected turnaround time.
6) What’s the biggest red flag in a capacity dispute?
A sudden change that benefits a person who was closely involved in arranging the appointment, controlling access, or “helping” with answers — especially if there’s no clear written explanation from the testator in their own words.
How Atalaw Solicitors can help
If you’re worried a Will or LPA could be challenged, the best time to protect it is before you sign, not after a dispute starts.
Atalaw Solicitors can help you put the right safeguards in place — independent instruction-taking, clear attendance notes, sensible recording where appropriate, and properly-framed medical evidence — so your wishes are far harder to attack later.
Start by speaking to the team via Contact Us.