We sometimes receive consultations regarding wills from people of foreign nationality. When a foreign national residing in or owning assets in Japan decides to create a will, several legal and practical considerations must be taken into account. These considerations ensure that the will is valid, enforceable, and effective in distributing assets according to the testator’s wishes while avoiding legal disputes. Below are key points to be mindful of:
1. Applicable Law (Choice of Law)
Under Japan’s Act on General Rules for Application of Laws (Hō no Tekiyō ni Kansuru Tsūsokuhō), the general rule is that the law of the deceased’s nationality at the time of death governs succession (Article 36). However, Article 37 allows a foreign national who has habitual residence in Japan to choose Japanese law as the governing law for their succession. This choice must be explicitly stated in the will.
Key points:
- Without a valid choice of law, the law of the person’s nationality applies.
- Choosing Japanese law is recommended for foreigners with significant assets in Japan to ensure local legal clarity.
2. Form of the Will
Japan recognizes three types of wills under its Civil Code:
- Holographic will (jihi-sho yūigon) – handwritten by the testator
- Notarial will (kōsei-sho yūigon) – made before a notary public
- Secret will (himitsu-sho yūigon) – submitted in a sealed form to a notary
Foreign nationals should be aware that wills must meet Japanese formal requirements to be valid in Japan unless their home country’s law is applied and its form is accepted under international conventions such as the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961).
Recommendation:
Use a notarial will in Japan for maximum legal certainty and enforceability.
3. Language and Translation
While it is possible to draft a will in a foreign language, it is strongly recommended to write the will in Japanese or provide an official Japanese translation, especially when submitting it to a notary or probate court. This prevents misinterpretation and delays during probate.
4. Inheritance Rights and Forced Heirship (Iryūbun)
Japan has a forced heirship system, which guarantees a portion of the estate to certain heirs, such as spouses and children. This can conflict with the laws of countries (e.g., the U.S., the U.K.) where freedom of disposition is broader.
If Japanese law is chosen, the testator must ensure the will does not infringe on the mandatory shares of heirs. If the testator retains their national law (and that law does not have forced heirship), then broader discretion may be possible.
5. Assets in Multiple Countries
Foreign nationals often have assets located in more than one jurisdiction. It is crucial to:
- Create separate wills for each country if possible, ensuring no conflicts between them.
- Coordinate with legal experts in each country to handle tax and procedural differences.
6. Public Notarization and Storage
In Japan, notarial wills are stored securely by the notary, and registered with the Ministry of Justice. This ensures the will is not lost, destroyed, or challenged in terms of authenticity.
Conclusion
Foreign nationals in Japan must navigate both domestic and international legal systems when creating a will. To ensure validity and enforceability, they should:
- Clearly choose the applicable law,
- Use the appropriate legal form (preferably a notarial will),
- Respect Japanese formalities and inheritance rules (if Japanese law applies),
- Consider the location of their assets, and
- Seek legal counsel in both Japan and their home country.
Proper planning and professional advice can help ensure that a foreign national’s wishes are respected while preventing unnecessary disputes or complications.