'Igon' – Wills in Japan: What are the Formal Requirements and Legal Effects?

In Japan, a will, known as an igon (遺言) or yuigon, serves as a crucial legal instrument allowing individuals to direct the disposition of their property and address other personal affairs after their passing. While statutory rules of inheritance provide a default framework, a valid will enables a testator (the person making the will) to modify these rules, express their final wishes, and provide for specific individuals or causes. However, to ensure authenticity and prevent disputes, Japanese law mandates strict adherence to specific formalities for a will to be legally effective. This article explores the types of wills recognized in Japan, their stringent formal requirements, and their profound legal effects.

I. The Scope of Testamentary Dispositions: What Can Be Decided by a Will?

The Japanese Civil Code follows a principle that only matters specified by law can be subjects of a valid will (igon jikō hōtei shugi - 遺言事項法定主義). This means a testator cannot include just any wish in a will and expect it to have legal force. The primary categories of matters that can be determined by a will include:

1. Modifications to Statutory Inheritance:
   • Designation of Heirs' Shares (相続分の指定 - sōzokubun no shitei): A testator can specify different inheritance shares for their statutory heirs than what the law would otherwise prescribe (Article 902, Civil Code).
   • Disinheritance (Haijo - 廃除): A testator can, through their will (followed by a petition to the Family Court by the executor), seek to disinherit a statutory heir (who has legally secured share rights) for reasons of abuse, gross insult, or other serious misconduct (Article 893). A will can also revoke a previous disinheritance (Article 894(2)).
   • Designation of Estate Division Method (遺産分割方法の指定 - isan bunkatsu hōhō no shitei): A testator can specify how their estate should be divided among co-heirs or prohibit division for up to five years (Article 908).
   • Exemption from Hotchpot for Special Benefits (持戻しの免除 - mochimodoshi no menjo): A testator can direct that certain lifetime gifts made to an heir should not be deducted from that heir's share of the inheritance (Article 903(3)).
   • Modification of Co-heirs' Warranty Liability: A testator can alter the default warranty obligations among co-heirs regarding inherited property (Article 914).
   • Designation of Iryūbun Abatement Method: A testator can specify the order in which bequests should be reduced if they infringe upon the legally secured shares (iryūbun) of heirs (Article 1034 proviso).
2. Property Dispositions (Testamentary Gifts - Izō - 遺贈):
   This is a core function of wills, allowing a testator to bequeath specific assets or a portion of their estate to any person or entity, including non-heirs (Article 964).
3. Matters Concerning Personal Status:
   • Acknowledgment of a Non-Marital Child (Ninchi - 認知): A father can acknowledge paternity of a non-marital child by will (Article 781(2)).
   • Designation of a Guardian for a Minor: If the testator has minor children, they can designate a guardian for them by will (Article 839(1)).
   • Designation of a Supervisor for a Minor's Guardian: (Article 848).
4. Matters Concerning Will Execution:
   • Designation of an Executor (Igon Shikkōsha - 遺言執行者): A testator can appoint an executor to carry out the terms of their will (Article 1006(1)).

II. The Strict Path to Validity: Formal Requirements for Japanese Wills (遺言の方式 - Igon no Hōshiki)

Japanese law demands strict adherence to prescribed forms for a will to be valid (yōshiki kōi - 要式行為). This emphasis on formality aims to ensure the testator's true intent, prevent forgery or alteration, and provide clarity, given that the testator is not present to explain their wishes when the will takes effect. Failure to comply with these formalities can render a will void. There are two main categories of will forms: Ordinary Forms and Special Forms.

A. Ordinary Forms of Wills (普通方式 - Futsū Hōshiki) (Article 967, Civil Code)

These are the standard methods for creating a will under normal circumstances.

1. Holographic Will (自筆証書遺言 - Jihitsu Shōsho Igon) (Article 968):
   This is a will entirely handwritten by the testator.
   • Requirements:
     • The entire text, including the dispositive provisions, the date (year, month, and day), and the testator's full name, must be in the testator's own handwriting.
     • The testator must affix their seal (ōin - 押印) to the document. While a registered seal is not mandatory, some form of seal is required. Case law has recognized a thumbprint as valid (Supreme Court decision of February 16, 1989, 最判平成元年2月16日民集43巻2号45頁).
   • Advantages: Simplicity, privacy (no witnesses needed for creation), and low cost.
   • Disadvantages: High risk of formal defects leading to invalidity, potential for loss, forgery, or coercion, and ambiguity in handwritten text.
   • Ken'in (Verification): Traditionally, a holographic will (unless deposited under the new system described below) must undergo a court verification process called ken'in (検認) by the Family Court after the testator's death (Article 1004). Ken'in is primarily a procedure to preserve the will's state and inform heirs of its existence; it does not definitively validate the will's legal effectiveness, which can still be challenged.
   • Recent Reforms (Effective 2019-2020): Recognizing the burdens of full handwriting, reforms to Article 968 have relaxed some requirements:
     • Asset Inventory: While the main text, date, and signature must still be handwritten, an inventory of assets appended to the will can now be typed, printed, or be a copy of other documents (e.g., bank statements, property deeds), provided the testator signs and seals each page of such an inventory.
     • Custody System by Legal Affairs Bureaus: A new system allows testators to deposit their holographic wills with Legal Affairs Bureaus (法務局 - Hōmukyoku). Wills deposited under this system do not require post-mortem Family Court ken'in. This aims to enhance security and reduce burdens on heirs.
2. Notarized Will (公正証書遺言 - Kōsei Shōsho Igon) (Article 969):
   This is considered the most secure and reliable form of will in Japan.
   • Procedure:
     • It is made in the presence of a notary (kōshōnin - 公証人), a quasi-public official with legal expertise, and two or more witnesses.
     • The testator orally declares the substance of their will to the notary (口授 - kuju).
     • The notary writes down the testator's declarations and reads it back to the testator and witnesses, or allows them to peruse it.
     • The testator and the witnesses, after confirming the accuracy of the written content, must each sign and seal the document.
     • The notary then adds an attestation confirming that the will was made in accordance with the prescribed formalities, and signs and seals it.
   • Advantages: High degree of legal certainty, minimal risk of formal invalidity, forgery, or undue influence. The original is kept by the notary, preventing loss. No Family Court ken'in is required.
   • Disadvantages: The content becomes known to the notary and witnesses, and it involves more procedural steps and costs than a holographic will.
   • Accommodations for Disabilities (Article 969-2): Amendments in 1999 (effective 2000) introduced provisions allowing persons with speech or hearing impairments to make notarized wills using interpreters (including sign language) or by written communication (筆談 - hitsudan) with the notary.
3. Secret Will (秘密証書遺言 - Himitsu Shōsho Igon) (Article 970):
   This form allows the testator to keep the contents of their will secret until after their death, while still involving a notary and witnesses in its formalization.
   • Procedure:
     • The testator prepares their will (which can be handwritten, typed, or written by another person, but must be signed and sealed by the testator).
     • The testator seals the will in an envelope, using the same seal applied to the will itself.
     • The testator presents the sealed envelope to a notary and at least two witnesses, declaring that it is their will and stating their name and address (and the name and address of the drafter, if not the testator).
     • The notary writes the date of presentation and the testator's declarations on the sealed envelope, and then the testator, witnesses, and notary all sign and seal the envelope.
   • Advantages: Content remains confidential during the testator's lifetime.
   • Disadvantages: Still carries some risk of internal formal defects if the will itself was not properly prepared. It requires Family Court ken'in after death.
   • This form is rarely used in practice. If a secret will is found to be formally defective as such, but it independently meets all requirements of a holographic will, it can be upheld as a holographic will (Article 971).

B. Special Forms of Wills (特別方式 - Tokubetsu Hōshiki) (Articles 976-979)

These are exceptional forms of wills permitted only under specific, urgent circumstances where it is impossible or extremely difficult to use one of the ordinary forms.

• Wills in Imminent Danger of Death (Shibō Kikyūsha no Igon) (Article 976): Made by a person facing imminent death, in the presence of three or more witnesses. The testator orally declares their will to one witness, who writes it down, reads it back (or allows perusal), and then all witnesses sign and seal it. This requires subsequent confirmation by the Family Court within 20 days of the will's creation to be effective.
• Wills in Areas Isolated by Contagious Disease (Densenbyō Kakurisha no Igon) (Article 977): Made before an administrative officer (e.g., police officer) and at least one witness.
• Wills Made at Sea (Zaisen-sha Igon) (Article 978): Made by a person on board a vessel, before the ship's captain or an administrative officer and at least two witnesses.
• Wills of Persons in Shipwreck (Senpaku Sōnansha no Igon) (Article 979): A simplified form for those facing imminent death due to a shipwreck, made before two or more witnesses by oral declaration. Also requires subsequent Family Court confirmation.

A will made in a special form becomes invalid if the testator survives for six months after becoming capable of making a will in an ordinary form (Article 983).

C. Common Formalities and Prohibitions

• Alterations and Additions (Article 968(2)): Any changes to a will must follow strict formalities: the testator must indicate the place of change, add a note that a change was made, sign it, and affix their seal at the place of change.
• Disqualification of Witnesses/Attendants (Article 974): Certain individuals are disqualified from acting as witnesses or attendants for most types of wills, including minors, presumptive heirs, legatees (and their spouses and lineal blood relatives), and close relatives of the notary.
• Prohibition of Joint Wills (共同遺言の禁止 - Kyōdō Igon no Kinshi) (Article 975): A will cannot be made by two or more persons in the same instrument if their testamentary dispositions are interdependent. This is to preserve each testator's freedom to revoke or alter their will independently. A Supreme Court decision on September 11, 1981 (最判昭和56年9月11日民集35巻6号1013頁) invalidated a single document containing mutually dependent wills of a husband and wife.

III. The Life Cycle of a Will: From Creation to Effect

A. Testamentary Capacity (遺言能力 - Igon Nōryoku)

• The testator must possess testamentary capacity at the time of making the will (Article 963).
• A person aged 15 years or older has the capacity to make a will (Article 961). This is different from the general age of majority for other legal acts.
• Even an adult ward (seinen hikōkennin) who temporarily recovers their mental soundness can make a valid will under specific conditions, including the attendance of two or more physicians (Article 973).

B. When a Will Takes Effect (効力発生時 - Kōryoku Hassei-ji)

A will becomes legally effective upon the death of the testator (Article 985(1)). No legal rights are vested in beneficiaries, and no obligations are imposed, before this time.

C. Freedom of Revocation (遺言の撤回 - Igon no Tekkai)

A testator is free to revoke their will, in whole or in part, at any time before their death (Article 1022).

• Methods of Revocation:
  • By making a subsequent will that expressly revokes or is inconsistent with a prior will (the later will prevails regarding conflicting parts - Article 1023(1)).
  • By a lifetime act (e.g., a gift or sale) that is inconsistent with a provision in the will (e.g., selling an asset previously bequeathed) (Article 1023(2)).
  • By intentionally destroying or cancelling the will document or the specific part intended to be revoked (Article 1024).
• Revocation of a Revocation (Article 1025): Generally, if a will that revoked a prior will is itself revoked, the original (first) will does not automatically revive. However, it may revive if it is clear from the circumstances or the revoking instrument that the testator intended to revive the original will. The Supreme Court on November 13, 1997 (最判平成9年11月13日民集51巻10号4144頁) allowed revival where such intent was manifest.

D. Interpretation of Wills (遺言の解釈 - Igon no Kaishaku)

The primary goal in interpreting a will is to ascertain the testator's true intentions. Courts will examine the entire will, the circumstances surrounding its creation, and the testator's situation to determine their likely meaning. While the will's text is paramount due to formality requirements, courts strive for a reasonable interpretation that gives effect to the testator's wishes as far as possible within the legal framework. A Supreme Court decision on January 19, 1993 (最判平成5年1月19日民集47巻1号1頁) famously interpreted a vague bequest "to the public" (kōkyō e kifu suru) as a valid bequest to identifiable public interest entities, with the executor empowered to select the specific recipient, thereby upholding the testator's charitable intent.

E. Nullity and Annulment of Wills

• Nullity (Mukō - 無効): A will may be void ab initio for reasons such as lack of testamentary capacity at the time of creation, failure to comply with strict formal requirements, being a prohibited joint will, or being contrary to public policy.
• Annulment (Torikeshi - 取消): A will procured by fraud or duress can be annulled. The right to seek annulment generally passes to the testator's heirs if the testator dies without having ratified it.

IV. Court Verification (Ken'in - 検認) of Wills (Article 1004, Civil Code)

For holographic wills (unless deposited with a Legal Affairs Bureau under the new system) and secret wills, a process called ken'in by the Family Court is required after the testator's death.

• Purpose: Ken'in is primarily a procedure to preserve the physical state and content of the will document as found, and to formally notify heirs and other interested parties of its existence and contents. It serves as a measure against subsequent forgery or concealment.
• Not a Determination of Validity: Crucially, ken'in does not confirm or deny the substantive legal validity of the will. The will's conformity with formal requirements or the testator's capacity can still be challenged in separate litigation even after ken'in.
• Procedure: The custodian of the will, or an heir who discovers it, must submit it to the Family Court without delay. If the will is sealed, it must be opened in the presence of the heirs or their representatives at the Family Court.

V. Conclusion

The Japanese igon system provides individuals with the vital means to direct their affairs post-mortem, offering a way to tailor inheritance outcomes beyond the statutory default. However, this testamentary freedom is balanced by an exacting adherence to prescribed formalities, designed to safeguard the authenticity and integrity of the testator's final wishes. From the detailed requirements for holographic and notarized wills to the procedures for revocation and interpretation, the legal framework surrounding wills in Japan reflects a careful effort to respect the testator's intent while ensuring clarity and preventing disputes after they are no longer able to speak for themselves. Recent reforms, such as those concerning holographic wills, indicate a move towards making will-making more accessible while maintaining necessary safeguards.