National Report Mexico - Notarius International

214 J. A. Márquez González, National Report Mexico Notarius International 3-4/2005
For intestate successions, in general the rule of “lex rei
sitae” applies to immovables as well as to movables.
Hoever, Puebla and San Luis Potosí apply the law of domicile
(in the continental sense) to movables (and lex rei
sitae only for immovables), Quintana Roo applies the law
of domicile to both immovables and movables.
6.2.2. Societies or associations (article 2736 of the
CCFD)
The rules of foreign private corporate bodies are respected
in accordance with the law applicable to the act
of their incorporation (locus regit actum rule). The recognition
afforded by Mexican domestic law to the capacity
of the foreign corporate body cannot exceed the recognition
afforded by the country of origin and it is presumed
that the representative of that foreign corporate
body is, naturally, empowered to take part in any act in
which possible liability may be demanded.
6.2.3. Adoption (articles 410-E and 410-F of the
CCFD)
The law distinguishes between two types of adoptions:
- adoption “instigated by citizens of another country with
their habitual residence outside Mexican territory” is
referred to as international adoption;
- whereas adoption “instigated by citizens of another
country with their permanent residence in Mexican territory”
is referred to as adoption by foreign citizens.
In the first of these cases, the adoption is governed by
the international treaties signed by Mexico. In the second
case, the provisions of the CCFD naturally apply. Finally,
article 410-F adds that, when circumstances are equal,
Mexican citizens will be given preference over foreign
citizens.
The CCFD establishes a minimum age of 25 to adopt
and a minimum difference of 17 years between the person
adopting and the person adopted (article 390). However,
this provision is only included in the civil codes of
ten federal states in the Republic. The remainder, i.e. 22
civil codes, establish different ages ranging from 18 to 30
for the capacity to adopt and from 10 to 20 with regard to
the necessary age difference between the person adopting
and the person adopted.
6.2.4. Capacity of foreign citizens
In accordance with the provisions contained in articles
1327 and 1328 of the CCFD, foreign individuals and corporate
bodies have, in general, capacity to acquire property
through either testate or intestate succession, though
always in accordance with the provisions contained in the
PCUSM. There is only one restriction on this: possible
lack of international reciprocity.
6.2.5. Marital status acquired overseas
The law expressly provides that the records submitted
by the interested parties, in accordance with what is provided
in the Code of Civil Procedure, will be sufficient in
order to establish marital status acquired by Mexican citizens
located overseas, provided that the act is recorded
at the relevant office (article 51 of the CCFD).
6.2.6. Credit instruments issued by foreign citizens
Articles 252-258 of the General Law on Credit Instruments
and Operations state that the capacity to issue credit
instruments overseas or carry out any of the acts contained
therein will be established in accordance with the
law of the country in which the document is issued or the
act is carried out and that Mexican law on capacity will
apply. That same law will govern the capacity of foreign
citizens to issue instruments or carry out any of the acts
contained therein in the territory of the Republic.
6.3. Documents from foreign countries
Articles 139-140 of the notarial law of the Federal District
contemplate the protocolisation of documents of this
type once they have been legalized or stamped with the
apostille and translated, as appropriate, at the request of
the interested party and without any need for a court order,
except in the case of powers of attorney executed before
Mexican consuls.
Article 140 of the notarial law of the Federal District
states as follows: “Powers of attorney executed outside of
the Republic, when they have been legalized or stamped
with the apostille and translated, as appropriate, by an expert,
must be protocolised in order to take effect pursuant
to the law. This does not apply to powers of attorney executed
before Mexican consuls.”
Article 121 of the PCUSM, referred to above, is applicable
at an inter-state level and articles 130-131 of the
Federal Code of Civil Procedure also reproduce these
same provisions.
The states of Aguascalientes, Baja California, Campeche,
Guerrero, Nuevo León, Oaxaca (except in powers
of attorney), Tabasco, Tamaulipas, Tlaxcala and Yucatán
(10 federal states) require an express court order for
protocolisation.
At the other extreme, many states (Baja California Sur,
Chiapas, Chihuahua, Durango, Estado de México, Hidalgo,
Morelos, Nayarit, Veracruz, Quintana Roo, San Luis
Potosí, Sinaloa and Zacatecas) no longer require any
court order whatsoever and only contemplate entry in
record after legalization before the notary appointed by the
parties and translation by an official expert, as appropriate.
In several cases (for example, the Federal District, Estado
de México, Nayarit, Quintana Roo and Sinaloa) it is
expressly stated that protocolisation may take place without
any need for a court order or judicial writ. Estado
de México adds that such protocolisation will take place
by means of the statement by the notary contained in the
instrument that it does not contain any provisions contrary
to law, morality or good conduct. For its part, the notarial
law of the state of Jalisco authorises the issue of
wills in two languages in parallel columns (article 127).
To conclude, the current trend with regard to the problem
of validity of documents from foreign countries appears
to point in the direction of abandoning the require-