3-4/2005 UINL - Notarius International

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