Writing a valid will in Japan (1)

 

Should I know laws of Japan to write a valid will?

 

When you live in Japan and wish to write a valid will to transfer your precious assets safely to those to whom you wish to give your estates, you must know which laws will be applied to your wills.

 

<Form of a will>

 

Laws usually require a will to be in certain forms to be valid. For example:

  • whether or not you must sign it;
  • whether or not you must attach an inventory of your property; or
  • whether or not you must handwrite it.

If you do not comply with the requirements provided under the applicable laws, your testament will be invalid. This is called the issue of “form of wills”.

 

Regarding the form of wills, either of the following laws are applied to your will:

(i) the law of the place where a testator made the will (lex loci actus);

(ii) the law of the country where the testator had nationality, either at the time he/she made the will or at the time of his/her death;

(iii) the law of the place where the testator had domicile, either at the time he/she made the will or at the time of his/her death;

(iv) the law of the place where the testator had habitual residence, either at the time he/she made the will or at the time of his/her death; or

(v) in the case of a will concerning real property, the law of the place where the real property is located.

(Article 2, the Act on the Law Applicable to the Form of Wills)

 

If you reside in Japan and your nationality is other than Japan, either laws of Japan or the laws of the country of your nationality will be applied. This means that you only have to comply with either of them. You do not have to comply with all of the laws listed in the article.

 

<Formation and Effects of a Will>

 

On the other hand, the laws of the country of a testator’s nationality will govern the formation, effects and rescission of a will.

(Article 37, Act on General Rules for Application of Laws)

 

The issues of the formation, effects and rescission of a will are, for example:

  • whether or not you had testamentary capacity when you made your will;
  • whether or not you met certain requirements (excluding those regarding the form of a will) for your will to be effective; or
  • whether or not your manifestation of testamentary intention had any defect.

 

If you choose to comply with the laws of Japan concerning the form of wills, you must know the types of wills allowed in Japan.

 

Additionally, when you live in Japan and if the laws of your nationality states that you should comply with the laws of your residence (i.e., laws of Japan) concerning the formation, effects and rescission of a will or concerning the inheritance itself, you must understand such rules under the laws of Japan.

 

In the next article, I will write about the types of wills in Japan.

 

Stay tuned!

 

Note: This article reflect the amendments made recently to the laws of wills which are already in force.