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Aipedia: Will writers and estate planners
Capacity and undue-influence checks cannot be handed to AI, because both main will writing codes require the will writer to be satisfied that the client understands and acts freely. Weak evidence on either point is a common basis for challenging a will.
Part of: AI in Will writers and estate planners
In short
Will writers must confirm that clients have testamentary capacity and act freely: SWW Code clause 6.3 refers to the Mental Capacity Act 2005 and Banks v Goodfellow, and IPW clauses 5.3 and 5.6 forbid assisting clients who lack capacity. AI can help organise evidence, transcribe meetings or prompt questions, but cannot form the judgement. The Law Commission has recommended moving to the Mental Capacity Act test and letting courts infer undue influence. If a will is set aside, the will writer may face a claim, usually handled under PI subject to the policy terms.
AI does not assess capacity, but it can surround the meeting where capacity is judged. Online instruction forms may be completed by a relative. Chatbots may take instructions without the adviser ever speaking to the client alone. Notetakers transcribe the meeting, and some tools offer summaries that describe a client as "engaged" or "clear". Some firms are testing prompts that suggest capacity questions or flag risk factors such as age, recent bereavement or a beneficiary attending the meeting.
Each of these can help or harm. A good transcript is strong evidence of what the client understood. A summary that labels a confused client as lucid, or an online journey that never separates the client from the person who stands to benefit, can undermine the will.
SWW Code clause 6.3 requires the member to confirm that the client acts freely, understands and has testamentary capacity, with reference to the Mental Capacity Act 2005 and Banks v Goodfellow. Clauses 5.4 and 5.5 cover vulnerable clients. IPW Code clause 5.3 requires the member to be satisfied that the client acts freely and understands the service, and clause 5.6 says members must not assist clients lacking capacity, considering relevant law and case law. These are personal judgements. Software can support them; it cannot make them.
The Modernising Wills Law report of 16 May 2025 recommends replacing the common-law Banks v Goodfellow test with the Mental Capacity Act 2005 test, and allowing courts to infer undue influence where the evidence gives reasonable grounds to suspect it. The government is still reviewing the draft Bill, so these are not yet law. If enacted, they would make the will writer's contemporaneous record of the client's understanding and independence more important, because a court could draw inferences from gaps in it.
Illustrative scenario: an elderly client gives instructions over a video call, with her son operating the laptop. An AI notetaker produces a tidy summary saying the client "confirmed her wishes clearly". The will leaves most of the estate to the son. After her death, her daughter produces medical evidence of cognitive decline and points out that the client was never seen alone. The will is challenged, the estate incurs costs, and the daughter claims the will writer should have recognised the warning signs.
The weakness here is not the tool but the reliance on it. The summary replaced the adviser's own notes on how the client answered and why the adviser was satisfied.
Claims arising from capacity or undue-influence failures are usually treated as negligence claims under will-writer PI, which members must hold at a minimum of £2 million. The outcome often depends on the quality of the file: notes of what was asked, how the client answered, who was present and why the adviser was satisfied. Insurers may also look at whether the firm followed its own code. For notetakers specifically, see AI notetakers for will instruction meetings, and for related vulnerable-client issues in financial advice, AI and vulnerable clients.
Apex arranges PI for will writers whose clients include elderly and vulnerable people, and can review how your policy responds to capacity challenges. See AI in will writing, the codes and AI, and will writer insurance.
No. SWW clause 6.3 and IPW clauses 5.3 and 5.6 require the will writer to be satisfied about capacity and free will. AI can transcribe or prompt questions, but the judgement and the record of it must be the adviser’s own.
The common-law Banks v Goodfellow test currently applies to wills. The Law Commission recommended moving to the Mental Capacity Act 2005 test in May 2025, but the government is still reviewing the draft Bill.
It can help show what was said, but it does not record tone, hesitation or who was prompting. Courts look for the adviser’s reasoning. A transcript plus a contemporaneous capacity note is stronger than either alone.
Treat it as a warning sign. Speak to the client directly and alone, confirm the instructions are theirs, and record how you did so. This supports the free-will checks both codes require.
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