LEGAL MATTERS

About Last Will and Testament Granted in Mexico
By Mauricio García, José Cuevas y Gabriela Solís • Photos by Jesús de Avila • November 2009

Perhaps when you have been out of your country of residence for any reason, whether it is work, a leisure activity or just passing by, you may, for any reason, have had experienced the need to grant your last will. In Mexico, in the year of 2002, through our Government Department, a national campaign was launched named “September, Last Will and Testament Month”. This campaign, still in force, has as it main purpose to give the Mexican population in general the opportunity of making their last will, as long as they are legally capable of, so when the grantor passes away, the transmission of his goods will be doted with Legal Certainty avoiding any upcoming conflicts between legatees and inheritors. In Mexico, and without a doubt in every country, the transmission of the properties or goods of a person who has passed away without testament may cause several problems with the possible inheritors; this is the reason why the Government Department created this campaign to promote the regularization of Mexican’s testaments. This campaign involves many government sectors and authorities, including all Mexican Notary Publics to reduce their fees when drafting a testament, and sometimes, extending their working hours.

As mentioned in previous articles, Mexican law is ruled by a legal system called Roman Law (as opposing the North American common law system). This means that certain legal acts need to be granted under specific characteristics or formalities. One of these acts is the Testament, which can be classified into different kinds. The main kind of testament is the type called open will, which we will explain briefly.

The open will is granted before a Notary Public - a specialized attorney invested by the Government with the faculty to formalize and certify facts and legal transactions which are required to have authenticity and legal certainty- who has the legal obligation to advise anyone who goes to him for legal counsel and to explain the consequences of the legal acts granted before him. In the testament, the Notary assumes a characteristic which can be identified with a qualified witness, because of his trait of functioning as a certifying public officer, meaning, all the legal acts granted before him are assumed to be true, until proven otherwise. We have said that the Notary Public assumes this characteristic of qualified witness because his intervention in the act consists mainly in advising the testator of any and all formal requirements of the testament; for example, carefully drafting the wording so it will correctly express the testator’s intentions, advising the testator about what is possible to state in a testament or what is prohibited, etc. The Notary Public must always obey the testator’s intentions because in Mexico, the testament is an utterly personal legal act.

There are different dispositions that regulate the kinds of testaments, although we will just consider the most important ones in which the testator, as well as the Notary Public, must pay special attention at the time a testament will be granted. These are the following:

1. It must be enacted by the testator in a clear, precise and unequivocal way before the Notary.
2. A person who does not have a sound mind will not be able to make a testament.
3. A person under sixteen years old will not be able to grant a testament.
4. The Notary Public must legally ascertain, unequivocally, the identity of the person who wants to grant a will.
5. The testator shall not be under any kind of threatening influence.

There may be some special cases in which, besides of the aforementioned, the presence of two witnesses is required. These are the following exceptions:

1. When a testator is under 18 and over 16 years old.
2. When the testator does not know how to write or read.
3. When the testator is deaf, blind or mute.
4. When the Notary Public does not know the testator nor has a legal mean to ascertain his or her identity.

Finally, we list the following specifications, because they might be of major importance to foreigners who wish to grant a last will and testament whilst in Mexico:

1. When the testator ignores the Spanish language, an interpreter named by the testator will attend to the legal act and sign the testament. If the Notary Public knows the foreign language of the testator, he must state this circumstance and verify and certify that the testator’s will is established in the testament.
2.   A testament may be granted in a double column, with the Spanish language in one of the columns, and the foreign language in the other, if this is the testator’s will, even if he is fluent in Spanish.

There are other requirements that may need a more extended explanation, such as the ones that relate to the content of the testament, which must be explained to the testator by the Notary Public. Just to mention some of them, these are the ones that concern to the full disposition of the goods, repartition of the goods between legatees and inheritors, as well as the dispositions allowed and prohibited in testaments.

It is necessary to state that in Mexico there are no requirements concerning nationality, residence or migratory quality for the granting of a testament. This means that there are no restrictions for foreigners to make their testaments in Mexico, even if they are illegal residents in our country.

It is necessary to point out that a testament granted in a foreign country may also produce legal effects in Mexico, if it was granted complying with all the formalities established to that effect in the respective foreign country and duly translated to the Spanish language by an official translator expert.  Email to a friend

Robles, Lazo y Gallardo - Law Firm
E-mail: jgallardo@rlg.com.mx

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• Robles, Lazo y Gallardo, S.C. is a Law Firm of specialists in various areas of Law, including Corporate Law, Real Estate, Immigration, Foreign Investment, among others. The Firm is integrated with a group of highly qualified attorneys and has offices in Guadalajara (Privada del Niño No. 676, Fraccionamiento Camino Real, telephone number  33-3121-3010  33-3121-3010 ) and Puerto Vallarta (Carretera a Mismaloya No. 479 interior 107, Edificio Scala. Telephone number  322-223-3218  322-223-3218 ).E-mail: jgallardo@rlg.com.mx

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