Insights & News
Choosing a Notarial Will Instead of a Holographic Will
1. Japanese assets should have a Japanese will.
When a non-Japanese national (someone other than a Japanese citizen) wishes to create a will regarding assets in Japan, which country’s laws should govern the creation of the will?
In conclusion, it is considered safest to create a will in accordance with Japanese law, using the notarial will format (“Yuigon Kousei Syosyo”).
2. A will according to the law of the country with assets.
Japan has ratified the following Hague Convention and has also enacted domestic laws (Act on the Law Governing Formalities of a Will) in accordance with the convention.
“The Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (HCCH 1961 Form of Wills Convention)“
Therefore, a will that complies with this law, even if it is in a language other than Japanese (such as English), is legally valid in Japan.
However, when it comes to executing such a will in Japan, various difficulties may arise.
For instance, Japanese authorities like the Legal Affairs Bureau and banks in Japan typically request the submission of a translation of documents written in English.
Moreover, proof of the will’s legality according to foreign laws may also be required.
Therefore, it is considered safe to create a will in accordance with Japanese law for assets in Japan.
3. Holographic Will or Notarial Will
Assuming the creation of a will in accordance with Japanese law, what type of will should be created?
This is because there are several types of wills under Japanese law.
Here are two of the representative types as follows:
● Holographic Will (“Jihitsu Syosyo Yuigon (Igon)”): A will created in one’s own handwriting.
● Notarial Will (“Yuigon (Igon) Kousei Syosyo”): A will created at a Japanese notary public office.
While the format of a Holographic Will offers the advantage of not requiring creation at a notary public office and allows for more flexibility compared to a Notarial Will, it is concluded that the notarial will format should be chosen.
The reasons for this are as follows:
- A) Despite the ability to create a Holographic Will, it must be written in Japanese, and strict formal requirements must be adhered to. Therefore, it becomes a challenging format for non-Japanese individuals unless proficient in Japanese.
- B) In principle, a Holographic Wil requires probate proceedings (“Kennin” in Japanese) at a Japanese family court.
- While probate procedures in Japan are relatively straightforward compared to those in Western countries, there is a general belief that Japanese courts do not have jurisdiction over the Holographic Will of individuals who have a foreign address and passed away outside Japan (Domestic Relations Case Procedure Act Article 3-11).
- Even if the testators are Japanese nationals, the concept of jurisdiction over the probate still applies.
- Therefore, challenging situations may be encountered during the probate process.
- C) Even if the probate process can be conducted in a Japanese family court, the applicable law might become the deceased’s nationality’s law. In such a case, explaining the governing law (foreign law) to a Japanese court becomes necessary, incurring significant time and costs.
In contrast, a format of Notarial Will does not require such probate proceedings in a Japanese court.
In other words, in the absence of conflicts among legal heirs, inheritance procedures (such as changing the ownership registration of real estate at the Legal Affairs Bureau or/and terminating and refunding deposits at banks in Japan) can be completed promptly upon the testator’s death.
In conclusion, for non-Japanese individuals creating a will for assets in Japan, it is recommended to opt for the Notarial Will format.
We can provide legal support for creating such Notarial Wils, so please feel free to contact us.
Lawyer Ken Takahashi, a partner at Kensei Law Offices
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