Will

From the will 

Testamentary succession is that man's will expressed in the will. If this will has not been expressed in a will, it is called intestate or legitimate succession or ab intestato, by law. (Article 658 CC).

Now, the rights to a person's inheritance are transmitted from the moment of his death. 

The will, therefore, is a very personal act whose formation cannot be left in whole or in part to the discretion of a third party nor can it be made through a commissioner or agent. Likewise, the subsistence of the appointment of heirs or legatees, nor the designation of the portions in which they are to succeed when they are nominally instituted, cannot be left to the discretion of a third party. 

That said, two or more people cannot make a will jointly, or in the same instrument, whether they do so for reciprocal benefit or for the benefit of a third party.

All those to whom the law does not expressly prohibit it are capable of making a will; Therefore, minors under fourteen years of age of either sex and those who habitually or accidentally are not of sound mind are incapable of making a will as prohibited by law. 

A will granted with violence, fraud or fraud will always be void. Whoever commits this and prevents another from freely granting his last will will be deprived of his right to inheritance, without prejudice to the criminal liability he may have incurred. 

Testamentary provisions must be understood in the literal sense of their words, unless it clearly appears that the will of the testator was different.

Classification of wills

These can be common or special

The common will can be: 

    • holograph 
    • Open 
    • Closed 

The special will can be: 

    • The military 
    • The maritime 
    • The fact in a foreign country 

holograph It is called a will when the testator writes it himself in the form and with the requirements determined in article 688. 

The holographic will can only be granted by people of legal age. For this will to be valid, it must be written in full, signed by the testator, stating the year, month and day on which it was granted. If they do not contain crossed out, amended or between lines, the testator will save them under his signature. 

The holographic will must be notarized, presenting it before a Notary within five years following the death of the testator. 

Open It is called the will that expresses your last will in the presence of the people who must authorize the act, being aware of what is provided in it. 

The open will must be executed before a Notary competent to act at the place of execution and in the presence of two suitable witnesses, as well as two knowledge witnesses, if any, who may intervene as instrumental witnesses. Additionally, where appropriate, the doctors who would have recognized the testator as incapacitated and the interpreter who would have translated the testator's will into the official language used by the Notary. 

If the testator is in imminent danger of death, the will can be executed before five suitable witnesses, without the need for a Notary. In the event of an epidemic, the will can also be granted without the intervention of a Notary before three witnesses over the age of sixteen. 

The will executed with the presence of witnesses when the testator dies will be ineffective if within three months following the death the competent Notary is not consulted to have it elevated to a public deed, whether granted in writing or verbally. 

Closed It is called when the testator, without revealing his last will, declares that it is contained in the document that he presents to the people who must authorize the act. 

The closed will must always be written, and, if it is written by the testator, he must put his signature at the end. If it is written by any mechanical means or by another person at the request of the testator, he or she will put his or her signature on all its pages and at the bottom of the will. 

In general, the following may not be witnesses in wills: 

    • Minors (except in the case of an epidemic, when the will can also be granted without the intervention of a Notary before three witnesses over 16 years of age). 
    • In wills without content. 
    • Those who do not understand the language of the testator. 
    • Those who do not present the necessary discernment to carry out the witness work. 
    • The spouse or relatives within the fourth degree of consanguinity or second degree of affinity of the authorizing Notary and those who have an employment relationship with him or her. 
    • Likewise, in the open will, the heirs and legatees established in the will, their spouses, nor their relatives, within the fourth degree of consanguinity or second degree of affinity, may not be witnesses either. 

Rafael Reyes Pulido