1. Study the CLE article in this issue.      
2. Answer the test questions by marking the appropriate boxes. Each question has only one answer. Photocopies of this answer sheet may be submitted; however, this form should not be enlarged or reduced.      
3. Mail the answer sheet and the $15 testing fee ($20 for non-LACBA members) to:     Los Angeles Lawyer
   MCLE Test
   P.O. Box 55020
   Los Angeles, CA 90055  Make checks payable to Los Angeles Lawyer.      
4. You can also fill in the test form and submit it directly to LACBA by clicking "Submit." To submit your test answers online you will need to pay by credit card. After submitting your answers you will be presented with a screen requesting payment information. This information will be submitted in a secure mode which will allow you to safely transmit your credit card number over the Internet. If you prefer not to pay by credit card, please print this answer sheet and submit your responses by regular mail.      
5. Within six weeks, Los Angeles Lawyer will return your test with the correct answers, a rationale for the correct answers, and a certificate verifying the CLE credit you earned through this self-assessment activity.      
6. For future reference, please retain the CLE test materials returned to you. 

Test Sheet 

1. Seeking a safe harbor determination under the declaratory relief provisions of Probate Code Section 21320 will allow the court to render findings about the substance of the underlying dispute over the testamentary instruments.
True.
False.

2. The estate planning drafter can employ conversational question-and-answer techniques during the estate planning process and at the time of execution of the instruments. If these techniques are methodically employed in a manner consistent with the cases and the literature on assessment of mental competency, they can create useful records for later use as to the competency of the testator.
True.
False.

3. Reports and anecdotes by friends and neighbors of a testator's bizarre and unusual behavior, including forgetfulness, will establish lack of testamentary capacity.
True.
False.

4. Establishing a pattern of frequent use of alcoholic beverages by the testator will establish lack of testamentary capacity.
True.
False.

5. If it can be established that the testator was periodically confused and unable to carry on a normal conversation, lack of testamentary capacity has been established.
True.
False.

6. The sudden and frequent presence near the testator of a meddlesome relative who assists the testator in the chores and tasks of everyday living is the basis for a determination of "undue influence" regarding how the activities of the relative affected the questioned instrument.
True.
False.

7. There are situations in which service providers who occupy positions of trust with the testator are presumptively responsible for exerting undue influence over the testator's estate planning.
True.
False.

8. There are categories of persons who are considered (with limited exceptions) "disqualified"; testamentary gifts to them will be deemed invalid.
True.
False.

9. A no contest clause can almost always be relied upon to deter any contestant from challenging the instrument at question.
True.
False.

10. The question of whether an individual has the mental capacity to make his or her will is answered as of the time the testator reviews the draft instruments with the estate planning attorney.
True.
False.

11. A good, concise summary of the test for testamentary capacity as applied by the courts would be that testamentary capacity involves the question of whether, at the time the will is made, the testator has sufficient mental capacity to understand the nature of the act he or she is performing, to understand and recollect the nature and situation of his or her property, and to remember (and understand his or her relations to) the persons who have claims upon his or her bounty and whose interests are affected by the provisions of the instrument.
True.
False.

12. The singular testimony of the attorney-drafter as to the testator's mental competence and ability to execute his or her will is more likely than not to be of higher probative value to the court than the cumulative effect of the testimony of several of the testator's neighbors who recall the testator having episodes of forgetfulness or strange behavior.
True.
False.

13. The good, supportive expert opinion of a prominent behavioral scientist or psychiatrist will have a conclusive effect upon the issue of the testator's testamentary capacity.
True.
False.

14. Testimony of the subscribing witnesses as to the testator's mental capacity at the time of execution of the instrument in question is easily rebutted.
True.
False.

15. The testimony of a physician, nurse, or caregiver as to the testator's mental state at about the time of the execution of the instrument in question can be highly regarded evidence on the subject of the testator's mental capacity during this general time period.
True.
False.

16. The standard imposed upon the contestant, in terms of meeting the burden of proof in establishing lack of testamentary capacity on the part of the testator, is:
A. Beyond a reasonable doubt.
B. By clear and convincing evidence.
C. By a preponderance of the evidence.
D. None of the above.

Hypothetical
In a contest proceeding, the proponent of the will, using the instrument and declarations of attesting witnesses, offers proof of due execution and compliance with statutory formalities for the creation and execution of wills. The contestant, using testimony of friends and relatives of the decedent, offers proof that the testator was old and feeble when the will was executed, sometimes did not recognize relatives or old friends, and was absent-minded, eccentric, ill, and sometimes forgetful. The proponent, using the drafter attorney's declaration, offers proof that the testator was lucid when instructions were given to write the instrument, and was aware of 1) the nature of the act being performed when signing the instrument, 2) the effect it would have upon the intended beneficiaries, and 3) the nature of the testator's holdings at the time.

17. Who is most likely to prevail, given only these facts?
A. The contestant.
B. The proponent.

18. In an estate planning assignment in which a potential contest is anticipated, and specifically at the time of execution of the instruments, which of the following techniques are helpful in terms of preparing for a future defense of a challenged instrument?
A. Including an attorney among the attesting witnesses.
B. Making special efforts to orient the attesting witnesses to the task at hand and ensuring that they read the attestation clause that they are signing.
C. Making drafter attorney's summary entries for the notes file on the final questioning of the testator as to understanding and intentions at the time of signing the instruments.
D. All of the above.

19. Should percipient witness statements regarding the testator's mental status be summarized in signed writings, if possible, in advance of preparation of declarations or other formal discovery?
Yes.
No.

20. Can an early settlement conference assist in the resolution of a will contest?
Yes.
No.

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