Can you assess testamentary capacity after the person has died?

Yes, applying Banks v Goodfellow retrospectively to the available records. The opinion states clearly where the absence of a contemporaneous examination limits what can be said with confidence.

Is a diagnosis of dementia enough to show incapacity?

No. A diagnosis is a starting point, not the answer. The question is whether the specific decision could be understood, weighed and communicated at the material time, which is a functional and decision-specific enquiry.

Do you assess capacity to consent to medical treatment?

Where instructed and where records permit, yes, applying the same functional approach under the 2000 Act. Where the treatment question requires a different specialty's input, this is stated.

What if the adult cannot be examined because they have since deteriorated further or lack the capacity to consent to assessment?

A records-based opinion can still be given, with any limitations on confidence clearly stated. Where consent to examination is itself in doubt, this is addressed before any assessment is arranged.

Can you give an opinion on undue influence as well as capacity?

A psychiatrist can comment on vulnerability, suggestibility and the presence of a mental disorder that might increase susceptibility to influence, but the ultimate finding of undue influence is a matter for the court on all the evidence.

Mental capacity and testamentary capacity expert witness in Scotland

Capacity disputes turn on a precise legal test applied to a specific decision at a specific time, not on a general impression of frailty or eccentricity. I am instructed to give a reasoned psychiatric opinion on whether an adult had, or has, the capacity required for the decision in question — making a will, granting a power of attorney, managing property, litigating, or instructing an agent — assessed against the applicable legal test rather than a clinical diagnosis alone.

Instructions come from solicitors acting in executry disputes, applications under the Adults with Incapacity (Scotland) Act 2000, guardianship proceedings, and actions where capacity to instruct or to give evidence is challenged. Work is prepared for the sheriff court, the Court of Session and, where guardianship or intervention orders are in question, for the relevant sheriff.

Scope of opinion

What I can advise on

Whether the adult meets the functional test of incapacity under section 1 of the Adults with Incapacity (Scotland) Act 2000 for the specific act or decision in question.
Testamentary capacity applying the common law test in Banks v Goodfellow: understanding the nature of making a will, the extent of the estate, the claims of those who might expect to benefit, and freedom from delusion distorting that judgement.
Retrospective capacity assessed from contemporaneous medical and social work records where the person has since died or deteriorated and cannot now be examined.
Capacity to grant or to have granted a continuing or welfare power of attorney, and whether undue influence or vulnerability requires separate comment.
Capacity to instruct a solicitor and to conduct or defend proceedings.
The suitability of guardianship as against a lesser intervention, applying the general principles of benefit, minimum intervention and account taken of the adult's wishes under the 2000 Act.
Fluctuating or borderline capacity, including the effect of delirium, intoxication, depression or early dementia on the decision in issue.
Where relevant, the degree of susceptibility to influence from a person in a position of trust.

Capacity is decision-specific and time-specific. I do not give a global opinion that a person 'lacks capacity' without identifying the decision, the date, and the legal test that applies to it.

Typical instructions

Executry dispute over a will made shortly before death: A will executed weeks before death is challenged by a disappointed beneficiary. No contemporaneous capacity assessment was carried out at the time. The opinion is built from GP records, hospital notes, the solicitor's attendance note and any contemporaneous correspondence, applying Banks v Goodfellow retrospectively.
Application for guardianship contested by the adult: An older adult with a diagnosis of vascular dementia objects to a proposed welfare and financial guardianship. The instruction addresses functional capacity for specific financial and welfare decisions and whether a lesser intervention would meet the section 1 principles.
Power of attorney granted during a period of depressive illness: A continuing power of attorney is challenged on the basis that the granter was severely depressed at the time of signing. The opinion considers the granter's understanding of the document's effect and the possibility of impaired judgement or undue influence.
Capacity to instruct in ongoing litigation: A party to a civil action develops a cognitive impairment during the litigation. The agent needs an opinion on whether the client can still give instructions and understand advice, or whether a curator ad litem should be sought.

The report

What the report includes

Every report identifies the specific decision under scrutiny, the date or period in question, and the legal test that applies — the 2000 Act functional test, Banks v Goodfellow, or the common law test for capacity to instruct — before any clinical material is discussed. Where more than one test could apply, the report explains which is used and why.

The clinical account draws on direct examination where the adult is available, and otherwise on GP records, hospital records, care records, contemporaneous correspondence and any attendance notes from solicitors or other professionals present at the material time. Where the record base is incomplete, the report says so and states what weight the opinion can properly bear.

The reasoned opinion addresses each element of the applicable test in turn, states the degree of confidence that can be attached to a retrospective opinion, and, where appropriate, comments on the least restrictive alternative to guardianship consistent with the section 1 principles of the 2000 Act.

Timescales

Timescales and format

Assessment is by direct examination where the adult can be seen, in Greater Glasgow, at an agreed venue, in a care setting, or by secure video where clinically appropriate. Retrospective opinions based on records alone do not require an examination but do require the full record set before work begins.

Report turnaround runs from receipt of complete records: [CLIENT TO CONFIRM: X weeks]. Guardianship applications with a fixed hearing date should be flagged at enquiry stage so availability can be confirmed before instruction.

Supplementary opinion following disclosure of further records, joint reports with an opposing expert, and attendance at proof or at a guardianship hearing are all available on the terms set out under fees and timescales.

Questions

Frequently asked questions

Can you assess testamentary capacity after the person has died?: Yes, applying Banks v Goodfellow retrospectively to the available records. The opinion states clearly where the absence of a contemporaneous examination limits what can be said with confidence.
Is a diagnosis of dementia enough to show incapacity?: No. A diagnosis is a starting point, not the answer. The question is whether the specific decision could be understood, weighed and communicated at the material time, which is a functional and decision-specific enquiry.
Do you assess capacity to consent to medical treatment?: Where instructed and where records permit, yes, applying the same functional approach under the 2000 Act. Where the treatment question requires a different specialty's input, this is stated.
What if the adult cannot be examined because they have since deteriorated further or lack the capacity to consent to assessment?: A records-based opinion can still be given, with any limitations on confidence clearly stated. Where consent to examination is itself in doubt, this is addressed before any assessment is arranged.
Can you give an opinion on undue influence as well as capacity?: A psychiatrist can comment on vulnerability, suggestibility and the presence of a mental disorder that might increase susceptibility to influence, but the ultimate finding of undue influence is a matter for the court on all the evidence.

Instructing

Instructing Dr Qureshi

Instructions are accepted from pursuer and defender agents, insurers, regulatory bodies and occupational health providers. A conflict check is carried out before any instruction is accepted.

Send a letter of instruction Check availability and conflicts

Or call 07739 587092.