3-4/2005 UINL - Notarius International

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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 The states of Veracruz, México and Chihuahua recently repealed articles that provided severe penalties on these matters. 4.5.3.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.
Notarius International 3-4/2005 J. A. Márquez González, National Report Mexico 211 In any case, it is clear that an important exception to this, expressly contemplated in our legislation by virtue of a subsequent reform, is contained in article 1549 bis, which is discussed above (simplified public wills). 4.6. Succession through substitution by a trustee Even though we continue to be guided by the principle of freedom of last will and testament (articles 1295 and 1344). It is clear in any case that the philosophy of the Civil Code retains a framework of restrictions that limit the testator's freedom in certain circumstances. These restrictions can be perceived very clearly in the case of conservation of the freedom to make a will of the heirs themselves. Thus, substitutions of heirs or legatees involving more than one generation, clauses that prohibit certain assets from being alienated, fiduciary dispositions and conditions that are clearly illegal are prohibited. For example, it is expressly provided that a condition imposed on the heir to marry or not marry will be considered as not having been included. 4.7. Executorship In legitimate succession, the executor (albacea) of the estate is directly appointed by the judge – or by the notary -, at a meeting of all the heirs (articles 805 of the Code of Civil Procedure of the Federal District and 1862 of the CCFD). This meeting is only omitted if there is a single heir or if the interested parties cast their vote in the response to the call. In accordance with the specific list provided in the Code, the executor may be universal, special, joint and general. Our Civil Code also refers to other representatives in succession, i.e. the executor (ejecutor) (general or special, article 1702). This executor confines his activities to the sums or things that have been placed under his responsibility in the total net worth of the total inheritable estate. Article 1728 refers to the concept of the auditor (inventor) and his duties are confined to supervising the office of the executor. 5. Company Law There are two types of companies in Mexican civil law: the Asociación Civil (Civil Association) and the Sociedad Civil (Civil Company). 5.1. The civil association In accordance with article 2670, the Civil Association is defined as follows: “When a number of individuals agreed to meet, in a way that is not entirely temporary, to achieve a common purpose that is not prohibited by law and is not of a predominantly financial nature, they constitute an association”. The agreement must be made in writing and must contain the bylaws of the association, which are required to be entered on the public register. The notary's involvement often extends to drafting the minutes of the general meeting at which the association is founded and the bylaws themselves, as well as the respective notarisation of the act. In view of the philanthropic nature of associations of this type (the law states that they must not be of a predominantly financial nature), in the event of dissolution, the assets will be put to a particular use, according to what is provided by the statutes or according to what is decided by the general meeting itself. However, the powers of the general meeting are restricted solely to allocating the equivalent of their contributions to the members of the association. What happens to the other assets? The final part of article 2686 of the law states that they must be applied to another association, provided that the purpose of that association is similar to the association that is extinguished. 5.2. The civil company The second type of corporate body governed by our law is the Civil Company. Article 2688 of the CCFD states as follows: “Through the incorporation papers, the members mutually agree to combine their resources or their efforts to achieve a common purpose, of a predominantly financial nature, but which does not consist of commercial speculation”. As we can see, the difference between civil associations and civil companies in Mexican law basically relates to their purpose, since companies have a “predominantly financial” purpose. Besides that important difference, companies have company capital, whereas associations have assets. This means that companies have equity participations and can distribute earnings, which is not the case with associations. Also, in the case of companies, it is possible for members to assign their equity participations, whereas in associations, the rights held are highly personal. Finally, in the case of companies, directors have unlimited joint and several liability, which is not the case in associations. 6 The incorporation papers are normally made in writing, but the involvement of the notary is required if assets that require it are being transferred. It must also be entered on the register in order for it to take effect against third parties. Article 2693 states the requirements for the contents of the incorporation papers. It is important to clarify that the acquisition of real estate by these companies must comply with the provisions contained in article 27, section III of the PCUSM, which contains the following restriction: Public or private charitable institutions whose purpose is to help those in need, scientific research, dissemination of teaching, reciprocal aid of their members or any other lawful purpose may not acquire more real estate than is absolutely necessary for their object and that is immediately or directly intended for it, subject to the regulations contained in the law. The obligation of members in companies of this type includes a subsidiary guarantee for the executive members' unlimited joint and several liability; other members only cooperate through their contributions, unless otherwise provided in the incorporation papers. 6 MIGUEL ÁNGEL ZAMORA Y VALENCIA, Contratos Civiles (Civil Contracts), Porrúa, México, 1998, pages 238-239.
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