Making Wills Easier and Safer in Japan: Understanding the Relaxed Rules for Holographic Wills and the New Public Custody System

Wills are a fundamental tool in estate planning, allowing individuals to determine the distribution of their assets after their passing. In Japan, several forms of wills are recognized, including notarized wills (公正証書遺言 - kōsei shōsho igon), secret-deed wills (秘密証書遺言 - himitsu shōsho igon), and holographic wills (自筆証書遺言 - jihitsu shōsho igon). Holographic wills, entirely handwritten by the testator, have traditionally been valued for their simplicity and cost-effectiveness, as they can be created without the involvement of a notary. However, they also carried significant risks, such as being lost, destroyed, concealed, or forged, and were prone to formal errors that could lead to their invalidation.

Recognizing these challenges and aiming to encourage more individuals to create legally sound wills, Japan has implemented significant reforms. These reforms address both the creation and the preservation of holographic wills, making them a more accessible and secure option. This article delves into two key pillars of these reforms: the relaxation of the strict handwriting requirements for holographic wills and the establishment of a new public custody system for these wills at Legal Affairs Bureaus.

Part 1: Relaxing the Formalities for Holographic Wills (自筆証書遺言)

The traditional requirements for a valid holographic will in Japan were notably stringent, demanding meticulous attention to detail from the testator.

Traditional Requirements and Their Burdens:

Under Article 968 of the Civil Code before its amendment, for a holographic will to be valid, the testator had to:

1. Handwrite the entire text of the will, including all dispositive clauses.
2. Handwrite the full date of creation (year, month, and day).
3. Handwrite their full name.
4. Personally affix their seal (印鑑 - inkan or 拇印 - boin) to the document.
   Furthermore, any additions, deletions, or other alterations had to follow a very specific procedure: the testator needed to indicate the place of the change, make a note that the change was made, specially sign that note, and affix their seal to the place of alteration. Failure to comply with any of these requirements could render the entire will, or the specific alteration, invalid.

A significant burden, especially for elderly testators or those with extensive assets, was the requirement to handwrite detailed lists of properties. Imagine an individual with multiple bank accounts, several parcels of real estate, and a portfolio of securities; meticulously handwriting every detail (account numbers, property descriptions with lot numbers and areas, stock certificate details) was not only time-consuming but also highly susceptible to errors or omissions that could lead to disputes.

The Key Reform: Non-Handwritten Property Inventories (Civil Code Article 968(2))

A major breakthrough came with the amendment to Article 968, effective from January 13, 2019. While the core requirements for the main dispositive text, date, and signature remain (they must still be handwritten by the testator and sealed), a significant concession was made for property inventories (相続財産目録 - sōzoku zaisan mokuroku).

Under the revised Article 968(2):

• A testator can now attach a property inventory to their handwritten will, and this inventory does not need to be handwritten by the testator.
• This inventory can be:
  • Typed or created using a word processor.
  • Prepared by another person (e.g., a family member or legal advisor, though the will itself must express the testator's intent).
  • Comprised of supporting documents such as copies of bank passbooks, real estate registration certificates (登記事項証明書 - tōki jikō shōmeisho), or securities statements.

Requirements for Non-Handwritten Inventories:
To ensure authenticity and prevent tampering with these non-handwritten inventories, the law imposes specific safeguards:

• The testator must personally sign and affix their seal on each page of the non-handwritten inventory.
• If a page of the inventory has information on both sides, the testator's signature and seal are required on both sides of that page.
• The handwritten portion of the will should clearly refer to and incorporate the attached inventory as being part of the will.

This reform significantly reduces the physical burden of will creation, lowers the chance of minor errors invalidating a detailed property list, and makes holographic wills more practical for individuals with numerous or complex assets.

Continued Strictness for Alterations (Civil Code Article 968(3))

It is crucial to note that the strict traditional method for making alterations (additions, deletions, etc.) remains in force for the handwritten parts of the will. Moreover, this same strict procedure—indicating the location of the change, noting the fact of the change, specially signing this note, and affixing a seal to the precise spot of the change—also applies to any alterations made to the non-handwritten property inventory itself after its initial execution.

If a testator wishes to make substantial changes to an already executed property inventory, it is generally advisable to create an entirely new inventory. This new inventory, even if non-handwritten, must be properly executed (signed and sealed on every page/side by the testator) and clearly referenced in the handwritten will (or a codicil) as replacing the previous inventory.

Part 2: The New Public Custody System for Holographic Wills

While relaxing the creation formalities was a significant step, the risks associated with the private storage of holographic wills remained. To address these, Japan enacted the "Act on Custody of Holographic Wills at Legal Affairs Bureaus" (法務局における遺言書の保管等に関する法律 - Hōmukyoku ni okeru Yuigonsho no Hokan tou ni kansuru Hōritsu), which came into effect on July 10, 2020. This Act established a nationwide system for the public custody of holographic wills.

Rationale for the Custody System

Privately kept holographic wills were vulnerable to several issues:

• Loss or Accidental Destruction: Wills could be misplaced, unintentionally thrown away, or destroyed in fires or natural disasters.
• Concealment or Tampering: Dissatisfied heirs might find and hide, destroy, or even alter a will.
• Failure of Discovery: Heirs might never find the will, leading to the estate being distributed according to statutory rules (intestacy) against the testator's wishes.
• Disputes over Authenticity/Formalities: If a will was found, its authenticity, the date of creation, or compliance with formal requirements could become subjects of dispute.

The public custody system aims to mitigate these risks by providing secure storage, preventing unauthorized access or alteration, and ensuring that heirs can reliably ascertain the existence and content of the deceased's will.

Key Features of the Custody System:

1. Designated Custodial Authority (遺言書保管所 - Yuigonsho Hokansho)
   • The custody service is provided by designated Legal Affairs Bureaus (法務局 - Hōmukyoku) and their branches, which act as "Will Custody Offices". These are national government offices, chosen for their existing infrastructure, nationwide presence, and capacity to handle sensitive personal information securely.
2. Procedure for Depositing a Will (保管申請 - Hokan Shinsei)
   • Eligibility to Apply: Only the testator themselves can apply to deposit their holographic will. Proxies are not permitted. Minors aged 15 or older who have testamentary capacity can also apply.
   • Form of Will for Deposit:
     • The will must be a valid holographic will, complying with the requirements of Article 968 of the Civil Code (including the new rules for non-handwritten inventories).
     • It must be unsealed when presented for deposit. This allows the custodian officer to check its format.
     • The will must conform to certain physical format requirements prescribed by Ministry of Justice ordinance (e.g., standard paper size, no staples, to facilitate scanning and storage).
   • Application Process:
     • The testator must personally appear at a designated Will Custody Office. The choice of office can be based on the testator's domicile, registered family domicile (honseki), or the location of real estate they own in Japan. If they have already deposited another will, any subsequent deposit must be at the same office.
     • An application form must be submitted, containing details such as the testator's name, date of birth, address, the will's creation date, and if mentioned in the will, the names and addresses of beneficiaries and any designated executor.
     • The testator must present official identification documents for identity verification by the Wills Custodian Officer (遺言書保管官 - yuigonsho hokankan).
   • Formal Check by Custodian Officer: The Wills Custodian Officer will conduct an external check of the will to ensure it meets the formal requirements of a holographic will (e.g., handwriting of the main text, date, and signature; presence of a seal; proper execution of any non-handwritten inventory pages). Crucially, the officer does not review, advise on, or confirm the substantive validity, legal effect, or wisdom of the will's contents. That remains the testator's responsibility.
   • Fees: A statutory fee is payable for the deposit and custody service.
3. Storage, Information Management, and Retention
   • Physical Storage: The original holographic will is securely stored within the facilities of the Will Custody Office.
   • Digital Imaging and Centralized Database: The will is scanned, creating a digital image. This image, along with key information about the will and the testator, is stored in a secure, centralized electronic database called the "Will Custody File" (遺言書保管ファイル - yuigonsho hokan fairu). This system allows for nationwide searches.
   • Retention Period: The original will is stored for a substantial period after the testator's death (current Ministry of Justice guidelines indicate 50 years from death). The digital image data is stored for an even longer period (currently 100 years from death) to prevent disputes concerning succession. After these periods, the documents and data may be disposed of.
4. Testator's Rights During Their Lifetime
   • Viewing the Stored Will: The testator can, at any time, request to view their original deposited will. This requires a personal visit to the specific Will Custody Office where the will is stored, along with identity verification. They cannot, however, obtain a certified copy of their own will's image data during their lifetime, as the primary mechanisms are viewing or withdrawal.
   • Withdrawal of Custody Application (保管の申請の撤回 - Hokan no Shinsei no Tekkai): The testator has the right to withdraw their application for custody at any time. This also requires a personal visit to the Will Custody Office. Upon withdrawal, the original will is returned to the testator, and all associated digital information (image and data) is deleted from the system. It is vital to understand that withdrawing the will from custody does not in itself legally revoke the will. To revoke the will, the testator must still comply with the formal requirements for will revocation set out in the Civil Code (e.g., by creating a new, conflicting will, or by intentionally destroying the original will with the intent to revoke).
5. Procedures After the Testator's Death
   • Discovering the Will:
     • Certificate of Will Custody Facts (遺言書保管事実証明書 - Yuigonsho Hokan Jijitsu Shōmeisho): Anyone (not just heirs) can request this certificate from any Will Custody Office. It confirms whether a will by a named deceased person is in custody anywhere in the system and provides basic identifying information like the will's storage number and the date it was recorded as created, but not its contents. This is useful for an initial check.
     • Certificate of Will Information (遺言書情報証明書 - Yuigonsho Jōhō Shōmeisho): Heirs, named beneficiaries, designated executors, and other legally defined interested parties can request this certificate after the testator's death. This certificate includes a certified copy of the stored will's image and its associated data, effectively revealing the will's contents. This request can be made at any Will Custody Office, thanks to the centralized database.
     • Viewing the Original Will: The same interested parties who can request the Certificate of Will Information can also apply to view the original physical will at the specific office where it is stored.
   • Notification to Other Interested Parties: When a Will Custody Office issues a Certificate of Will Information or permits viewing of the will to one interested party (e.g., one heir), it is then obligated to promptly notify other statutory heirs, as well as any beneficiaries or executors named in the will (whose details were provided at the time of deposit), that a will of the deceased is in custody and has been accessed. This proactive notification aims to ensure that all relevant parties become aware of the will's existence and status, promoting transparency. (This notification is not made if the parties are already aware).
6. Crucial Advantage: Exemption from Court Probate (検認 - Ken'in)
   One of the most significant practical benefits of using the public custody system is that a holographic will stored under this system is exempt from the otherwise mandatory court probate procedure known as ken'in (Civil Code Article 1004(1); Article 11 of the Custody Act).
   • The ken'in procedure, conducted by the Family Court, involves examining the will's physical state at the time of discovery, formally recording its contents, and notifying interested heirs. Its primary purpose is to preserve the will's condition and prevent tampering, not to rule on its substantive validity.
   • Because the Legal Affairs Bureau's custody process already involves a formal check, secure storage, and identity verification, the objectives of ken'in are largely met. Dispensing with this court procedure for wills in public custody saves heirs considerable time, effort, and administrative burden, allowing for a potentially faster commencement of the estate settlement process.

It's important to remember that even if a will is stored in the Legal Affairs Bureau system, its substantive validity (e.g., whether the testator had capacity, whether there was undue influence, or whether the dispositions are legally permissible) can still be challenged in court. The custody system and its formal checks primarily address the will's formal integrity and preservation.

Synergies and Overall Benefits of the Reforms

The relaxation of handwriting rules for holographic wills and the introduction of the public custody system are designed to work in synergy:

• A testator can now more easily prepare a detailed holographic will using a non-handwritten property inventory.
• They can then deposit this more easily prepared will into the secure public custody system.
• This combination significantly lowers the barriers to creating a holographic will while substantially increasing its security and the likelihood of it being found and respected after death.

The overall benefits include:

• Increased Accessibility: Making it easier for individuals, particularly those with many assets or physical limitations, to create a valid holographic will.
• Enhanced Reliability and Security: Greatly reducing the risks of loss, destruction, concealment, or forgery associated with privately kept wills.
• Simplified Post-Death Procedures: The exemption from court probate (ken'in) for publicly custodied wills streamlines the process for heirs.
• Facilitating Discovery: The centralized database and notification procedures make it much more likely that heirs will become aware of the will.
• Reduced Disputes: While not eliminating all potential for disputes, the formal checks, secure storage, and clear record-keeping are expected to reduce conflicts over the authenticity and formal validity of holographic wills.
• Encouraging Will Creation: By making holographic wills more practical and secure, the reforms aim to encourage a greater number of people to engage in estate planning through wills.

Conclusion

The recent reforms to Japan's laws concerning holographic wills represent a significant modernization effort. By easing the traditionally strict handwriting requirements for property inventories and establishing a robust public custody system at Legal Affairs Bureaus, the legal framework now offers a much more user-friendly and secure path for individuals wishing to make their testamentary intentions known through this form of will. These changes not only simplify the will-making process for testators but also provide greater certainty and efficiency for heirs after the testator's passing. For anyone involved in estate planning or administration in Japan, understanding these new rules is crucial for leveraging the enhanced viability and security of holographic wills.