National Report Mexico - Notarius International

More documents

Recommendations

Info

Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 209 The capacity to make a will is presumed. That, in effect, is the formulation contained in article 1305, although in a negative sense. Article 1306 provides as follows: “The following persons do not have the capacity to make a will: “I. Minors, either male or female, under the age of sixteen; and II. Persons who are habitually or temporarily not of sound mind”. This provision therefore repeals the general rule contained in article 646, that establishes a legal age of 18 or over. We should state that only the civil codes of the states of Michoacán (article 1171), Puebla (article 3065), Quintana Roo (article 1252), Tabasco (article 1386) and Tlaxcala (article 2641) state that the legal age to make a will is 14, since the rest of the country's civil legislation (for example, article 1306 of the CCFD and article 1239 of the Civil Code of Veracruz) require the testator to be 16 or over. 4.5. Types of will Our Civil Code contemplates a great many types of will. In principle however, wills can be classified under just two overall headings, i.e.: ordinary and special. Ordinary wills under our law include open public wills, closed wills, simplified wills and holograph wills (article 1500). Special wills include private wills, military wills, maritime wills and wills made overseas (article 1501). We should also note that the codes of Aguascalientes (articles 1411-1 413), Coahuila (articles 972-974), Chihuahua (article 1406), Oaxaca (articles 1403-1405), Puebla (articles 3259-3261) and Tlaxcala (articles 2803- 2807) do not list holograph wills and that, incidentally, the code of Nayarit does not contemplate wills made overseas or military wills or maritime wills. The new Civil Code of the State of Mexico now only contemplates open public wills, simplified public wills, military wills, maritime wills and wills made overseas (articles 6,120- 6,121). The Civil Code of Veracruz (article 1454) refers to what are known in other legal systems as “closed public wills” as “closed notarial wills” and also calls holographs “autographs” (article 1483). However, both changes are solely of form. The Civil Code of Jalisco already contemplates electronic wills (article 2848) and the civil codes of Guerrero and Querétaro allow wills made in the air (articles 1459 and 1381, respectively). The Civil Code of Guerrero even authorises wills made in spacecraft “from lift-off onwards” (ditto, 1381). 4.5.1. Open public wills These wills are classified as “public” and “open” due to the fact that they are made before an attester, in other words, a notary public, and are therefore necessarily entered in the notarial records. Until recently, they were drafted, signed and attested in the presence of three attesting witnesses. Most of the codes in the Republic continue to require the formality of three attesting witnesses when executing an open public will. Exceptions to this are the civil codes of the states of Nayarit (article 2647), the Federal District (article 1513), Jalisco (article 2842), Baja California Sur (article 1418), Veracruz (article 1444), Querétaro (article 1388), Colima (article 1407) and Sonora (article 1589), which establish that two witnesses may attend at the request of the testator or the notary. The requirement is merely optional. In practice the act takes place without witnesses and, in fact, the definition of a will in the dogma has been reduced to the following: “An open public will is a will that is made before a notary”, thus superseding the previous formula which stated: “... before a notary and three witnesses” (article 1511 of the CCFD and article 1444 of the Civil Code of Veracruz). The Civil Code of Chihuahua, with amendments from December 2002, still retains the three witnesses (article 1415). This type of will requires close involvement and supervision by the notary, making him responsible at all times for drafting the clauses, ensuring that it conforms strictly to its author's wishes, reading out the will immediately after it has been made, the setting the respective signatures and the final witnessing of the act. Concrete provisions applying very specifically then govern the conduct of the notary responsible: articles 1514 and 1516-1518 govern exceptional circumstances such as when the testator cannot or does not know how to sign, when he or she is completely deaf or blind or does not know the local language. Article 1519 contemplates the principles of concentrated single act and attesting to full compliance with the formalities, subject to the penalties (article 1520) of invalidity of the will and liability for the notary. 4.5.2. Closed public wills Unlike open public wills, this type of will is not entered in any official record and for that reason is considered as “closed”. Nevertheless, it is still public because it involves the notary and witnesses. Wills of this type can be written by the testator, but also by another person, and can even be written on ordinary paper. These documents are characterised by the fact that, immediately after they have been drafted, paraphed and signed, they must be wrapped in a sealed paper. It must then be exhibited to the notary in the presence of three witnesses, declaring that the paper contains his or her last will and testament. This means that not even the attester can know the terms of the will. The witnesses are also unable to discover the terms of the will and the only way that an outside party can possibly discover them is if another person must sign at the request of the author if the author cannot or does not know how to sign and it is clear that this person must enjoy the author's full confidence. This type of will therefore completely fulfils the requirement for confidentiality while still being formally submitted to a notary. The notary, in fact, attests to the execution of the will and must also ensure that all the formalities inherent in acts of this type are fulfilled. In accordance with the provisions contained in article 1526, the notary must also attest to the cover itself of the document and it must then be signed by the testator, witnesses and the notary. The next step consists of the physical delivery of the respective document by the testator to the notary and the notary must then enter in his records the date on which the will was witnessed by him and returned to its author. This
210 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005 document may be kept by the testator himself, given to a person he trusts or deposited in the judicial archive. The notaries are responsible for the formalities to be observed with regard to wills and they are subject to serious penalties for failing to observe those formalities. Articles 1520 and 1534 of the CCFD state that failure to carry out any formality will mean that the will is invalid and the notary must assume full liability for any loss and damage and, in addition, will be penalised by loss of his office. Even the omission of the term “autorizado” (witnessed) on the notary's record – an irregularity which does not affect the consequences of the act – will be penalised by six months' suspension. Other civil codes, such as those of Guanajuato (articles 2789 and 2775) and Quintana Roo (articles 1464 and 1451) penalise the notary by loss of his office. Others, such as those of Baja California Sur (articles 1438 and 1424), Jalisco (article 2857), Nayarit (articles 2668 and 2654) and Querétaro (articles 1413 and 1397) make the notary liable only for loss and damage, in addition to an appropriate administrative penalty (this latter only in the case of Nayarit), but do not establish loss of the post (although it is true that they contemplate a penalty of six months' suspension in a number of circumstances). The Civil Code of the state of Michoacán (article 1384) only orders the payment of loss and damage and does not contemplate any suspension or loss of office. The states of Veracruz, México and Chihuahua recently repealed articles that provided severe penalties on these matters. 4.5.3. Simplified public wills Article 1549 bis, relating to simplified public wills, was added to the CCFD. This particular type of will is defined as follows: A simplified public will is a will relating to immovable property that is used or that is to be used for housing by the person acquiring it that is executed before a notary in the same deed as that which records its acquisition or a deed that records the regularisation of an immovable property by the authorities of the Federal District or any office or entity of the Federal Public Administration or in a subsequent act. In accordance with that same provision, the requirement to be fulfilled as far as the amount is concerned is that the value of the property must not exceed $ 314,000 Mexican pesos (approximately USD 35,000) or, in other words, the equivalent to 25 times the minimum salary in force in the Federal District, stated as a yearly amount. Simplified public wills are contemplated in the CCFD (article 1549 bis) and have also been included in the civil codes of Baja California Sur (article 1454), Chihuahua (articles 1406 and 1455), Colima (articles 871 bis and 1446 bis), Estado de México (article 6,136), Nayarit (article 2683 bis), Nuevo León (article 1446 bis), Querétaro (article 1460 bis) and Sonora (article 1625 bis). The few variations among them relate mainly to the value of the property. Nevertheless, this type of will is a complete novelty that is a clear departure from the traditional concept of a will. We have already seen how the will is executed in the deed of acquisition or regularisation itself, as though it were one more clause of that deed. It should also be noted that such wills can also be executed collectively, in other words each co-owner – as appropriate – can institute legatees with regard to his or her portion. Having said that, there is also no impediment to allowing the spouse to take part in the act for the relevant portion, thus repealing the prohibitive provision contained in article 1296 discussed above. Furthermore, it is expressly established that legatees can demand that the property be handed over directly, without the formality of an inventory and without giving a guarantee. The notarised title is issued in accordance with a specific procedure established in article 876 bis inserted in the Code of Civil Procedure of the Federal District. By virtue of this rule, a certified copy of the testator's death certificate and the transcript of the simplified public will must be exhibited to the notary. The notary will then publish the particulars of the case in the national newspapers and will also obtain – from different offices – records relating to the existence of other wills. If there is no opposition, the notary will issue the respective deed and order its entry at the Public Land Registry. The final intention must be summarised in the fact that this type of simplified will can solve, quickly and economically, the serious problems faced in this country regarding titles and regularisation of immovable properties, particularly in view of the efforts made by the offices responsible to solve the problem in administrative procedures. 4.5.4. Wills made overseas These wills must comply with the form required by local law and the Mexican officials of the official representation in that place will act as notaries or receivers of the will. These officials are under an obligation to send a certified copy to the Secretaría de Relaciones Exteriores (SRE) (Secretariat for Foreign Affairs = Foreign Ministry), where the procedure of drafting a certificate of delivery will be carried out and the news of the testator's decease will be published when it has occurred. 4.5.5. Joint wills In accordance with an express provision in our Civil Code (article 1296) it is clearly established that two or more people cannot make a will in the same document. This, naturally, is a clear consequence of the highly personal aspect stated the definition of a will itself (article 1295). This prohibition on making joint wills is strict because such a will cannot be made under any circumstances either in favour of a third party or even for the reciprocal benefit of the persons concerned. This also includes a prohibition on a spouse making a will in favour of the other spouse and vice versa. Obviously this can only occur if each spouse makes a will individually, but in individual, separate acts.
Page 1 and 2: 200 J. A. Márquez González, Natio
Page 9: 208 J. A. Márquez González, Natio

National Report Mexico - Notarius International

Create successful ePaper yourself

Delete template?

Save as template?