"To Be Inherited By": Navigating Japan's Evolving Landscape of Specific Property Succession Wills

Japanese inheritance law contains a unique and historically debated form of testamentary disposition commonly known as a "sōzoku saseru" (相続させる) will, which translates roughly to a "will causing inheritance" or "will letting inherit." This type of will, which allows a testator to direct that specific assets be passed directly to a designated heir, has journeyed from a practical notarial innovation through intense judicial and scholarly debate to eventual statutory recognition in the 2018 Civil Code reforms under the formal name "specific property succession will" (特定財産承継遺言, tokutei zaisan shōkei yuigon). Understanding its evolution and legal nature is crucial for anyone dealing with estate planning or succession involving Japanese assets or individuals.

The Genesis: Notarial Practice and Practical Appeal

The "sōzoku saseru" will emerged in the 1960s primarily through the practice of notaries public drafting wills. Testators often used straightforward phrases like, "I cause my eldest son, B, to inherit Blackacre," or "I let B succeed to Blackacre." While seemingly simple, this phrasing sparked a significant legal question: Was such a disposition a method of estate division (遺産分割方法の指定, isan bunkatsu hōhō no shitei) under Article 908 of the Civil Code, thereby constituting a form of direct inheritance? Or was it a testamentary gift or legacy (遺贈, izō) as understood under Article 964 of the Civil Code?

The distinction was far from academic, as it carried substantial practical consequences, particularly in the past:

• Property Registration: If considered a method of estate division (and thus inheritance), the beneficiary heir could typically apply for the registration of the property transfer solely. If it was a testamentary gift, a joint application by the estate executor or other heirs (as registration obligors) and the beneficiary (as registration obligee) was generally the norm, potentially leading to complications if other heirs were uncooperative. (It should be noted that later amendments to the Real Property Registration Act have simplified this for heir-legatees in some gift scenarios.)
• Registration License Tax: Historically, the registration license tax for property acquired by testamentary gift was significantly higher than for property acquired by inheritance. This financial difference often made the "inheritance" interpretation more attractive. (This tax disparity for heirs was largely eliminated in April 2003, but it was a major factor during the peak debate period.)
• Agricultural Land: Transferring agricultural land in Japan requires permission from the local agricultural committee. An exception often applied if the transfer was part of an "estate division" (inheritance), but not straightforwardly for testamentary gifts to non-heirs or even to heirs under the "gift" interpretation. (Later regulations have created exemptions for specific testamentary gifts to heirs.)
• Assignment of Leasehold Rights: A crucial difference that persists is that if specific property involving a leasehold is transferred by inheritance, the lessor's consent for the assignment of the lease is generally not required. However, if it's a testamentary gift, the lessor's consent is typically necessary under Article 612(1) of the Civil Code.

Given these practical advantages, especially the simpler registration and lower tax burdens associated with the "inheritance" characterization, the interpretation of "sōzoku saseru" wills as a method of estate division gained considerable traction, particularly among notaries and practitioners.

Judicial Interpretations and Scholarly Battles Leading to Kagawa

The legal nature of "sōzoku saseru" wills became a subject of conflicting lower court decisions and vigorous academic debate.

Early on, some courts, like in the "Tada judgment" (Tokyo High Court, March 30, 1970), viewed these wills as designating a method of estate division but still considered subsequent formal estate division procedures (consultation, mediation, or judicial decision) necessary, albeit with a strong obligation to respect the testator's intent. Conversely, other courts and influential scholars argued that since the Civil Code primarily provides for testamentary gifts as the means of disposing property by will, the "sōzoku saseru" phrasing should generally be treated as such.

A significant step came with the "Muto judgment" (Tokyo High Court, July 11, 1988). This decision also interpreted the "sōzoku saseru" will as a method of estate division. However, it held that if the beneficiary heir asserted their priority right under the will, no further estate division procedures concerning that specific asset were necessary. The property was deemed to be acquired by the beneficiary heir, with effect retroactive to the time of the testator's death. This ruling was lauded by notaries as it closely mirrored their established practices.

The Landmark "Kagawa Judgment" (Supreme Court, 1991)

The appeal of the Muto judgment led to the seminal Supreme Court decision on April 19, 1991 (Heisei 3), often referred to as the "Kagawa judgment." This ruling brought a significant measure of clarity and became the definitive judicial interpretation for nearly three decades. The Supreme Court held that:

1. A will employing "sōzoku saseru" phrasing should not be construed as a testamentary gift unless it is unequivocally clear that a gift was intended or special circumstances dictate such an interpretation.
2. Such a will is a testament specifying a method of estate division under Article 908 of the Civil Code. This designation is binding on other co-heirs, and they cannot deviate from it through subsequent estate division agreements or even through judicial estate division proceedings concerning that asset.
3. Critically, the specified property is considered to be directly succeeded to by inheritance by the designated heir at the moment of the testator's death (i.e., when the will takes effect). This means the asset does not become part of the general pool of jointly inherited property (遺産共有, isan kyōyū) that would otherwise require division among all heirs.

The Kagawa judgment largely embraced what became known as the "direct estate division effect theory" (遺産分割効果説, isan bunkatsu kōka-setsu). This theory, significantly advanced by Professor Mizuno Ken in a 1990 article, argued that a testamentary designation of a method of division under Article 908 has an immediate and direct effect. Professor Mizuno's analysis drew upon the legislative history of Article 908 and its purported comparative law origins, particularly in relation to the French legal concept of partage d'ascendant (testamentary partition by an ascendant). The explanatory notes accompanying the Kagawa judgment, written by the Supreme Court judicial research official, heavily referenced Professor Mizuno's work, indicating its influence on the Court's reasoning.

Scholarly Critiques: The French Connection and Equality Concerns

Despite its definitive stance, the Kagawa judgment and the underlying "direct estate division effect theory" were not without their academic critics. The debate was particularly intense regarding:

• Equality Among Heirs: Some scholars, like Professor Ito Masashi, were highly critical, viewing the Kagawa judgment as a "scandal in Civil Code history" that undermined the principle of equal inheritance among heirs. They argued that allowing specific assets to pass directly to one heir outside the normal division process could lead to unfair outcomes for other heirs.
• The French Law Analogy (Partage d'Ascendant): A major point of contention was the reliance on the French concept of partage d'ascendant as a theoretical underpinning.
  • Professor Mizuno Noriko found Professor Mizuno Ken's use of this French law concept problematic, arguing that it overlooked the historical context and fundamental safeguards of the French system, especially its inherent aim of ensuring a form of equal distribution (均分相続保障, kinbun sōzoku hoshō) among the descendants involved.
  • Professor Yoshida Katsumi further deepened this critique. He argued that the French partage d'ascendant is fundamentally an act of estate division that must involve all descendant heirs, with each typically receiving some allocation. A will that isolates specific property for one heir to the exclusion of others from that particular asset, and bypasses the collective division process, was, in his view, alien to the nature and requirements of the French partage d'ascendant. He concluded that Professor Mizuno Ken's theory had selectively focused on the effect of French testamentary division (direct transfer) while disregarding its essential prerequisites (like the involvement of all heirs in the partition and safeguards for their shares), thus weakening the analogy as a foundation for the Japanese interpretation.

These critiques highlighted a tension between the practical convenience of the "sōzoku saseru" will as interpreted by Kagawa and fundamental principles of inheritance law, as well as questions about the accuracy and applicability of the comparative law arguments used to support the judgment.

The 2018 Civil Code Reform: Codification as "Specific Property Succession Wills"

Nearly three decades after the Kagawa judgment, the 2018 reforms to Japanese inheritance law provided statutory recognition and a formal name for this type of disposition: the "specific property succession will" (特定財産承継遺言, tokutei zaisan shōkei yuigon).

Key aspects of this codification include:

• Definition and Effect (Article 1014(2)): The Civil Code now explicitly defines a specific property succession will as "a will that, as a designation of the method of division of the estate, provides for a specific property belonging to the estate to be succeeded to by one or several co-heirs." This language largely affirms the Kagawa judgment's characterization. Crucially, it confirms the direct effect: the heir designated in such a will acquires the specified property (subject to any encumbrances) directly upon the testator's death. The property does not become subject to co-ownership by all heirs pending division.
• Relationship with Forced Heirship (Iryūbun): The reforms also clarified the interaction with Japan's forced heirship rules (遺留分, iryūbun), which grant certain heirs (typically spouses, children, and parents) a legally protected minimum share of the estate. An heir who receives property through a specific property succession will takes that property subject to potential claims from other heirs entitled to a forced share, if the will infringes upon those shares (Articles 1046(1), 1047(1) concerning calculation of the basis for iryūbun claims).
• Placement in the Code: Interestingly, as noted by Professor Motoyama Atsushi (the author of the original Japanese article underpinning this discussion), the provisions for specific property succession wills are not placed immediately adjacent to Article 908 (which deals with testator-designated methods of estate division). Instead, they appear in later sections concerning the effects of wills and forced heirship. Professor Motoyama speculates this might subtly reflect a lingering discomfort with the "dubious parentage" – the contested French law analogy – of the concept, leading drafters to situate it somewhat apart from its traditional conceptual anchor.

The Current Landscape and Implications

Today, the specific property succession will is a firmly established and widely utilized tool in Japanese estate planning. It offers testators a clear and legally effective way to ensure that particular assets pass to chosen heirs directly and immediately upon their death, avoiding the complexities and potential disputes of a general estate division process for those assets.

While the intense historical debates about its theoretical nature (inheritance method vs. gift) have largely been settled by statutory enactment, the underlying principles and practical implications remain important:

• Clarity and Certainty: The codification provides greater clarity and certainty for testators and heirs.
• Efficiency: It facilitates a more streamlined transfer of specific assets.
• Consideration of Other Heirs: Testators must still consider the forced heirship rights of other statutory heirs. A specific property succession will does not override iryūbun claims, which can lead to monetary claims against the beneficiary if their iryūbun is infringed.
• Leasehold Rights: The issue regarding the necessity of lessor consent for the transfer of leasehold rights via a specific property succession will (interpreted as inheritance) versus a testamentary gift remains a practical distinction.

The journey of the "sōzoku saseru" will from a practical notarial device to a judicially affirmed doctrine, through intense scholarly debate, and finally to statutory enshrinement as the "specific property succession will," showcases the dynamic evolution of law in response to societal needs and legal reasoning. While the practical differences that fueled much of the early debate (such as registration taxes for heirs) have diminished due to other legal reforms, the core concept of allowing a testator to directly allocate specific assets via inheritance remains a significant feature of Japanese estate law. As the late Professor Shiozaki Yoshio reportedly did, even when theoretical preferences might differ, understanding and applying the law as established by precedent and statute is paramount, though this should not stifle continued academic inquiry into its foundations and implications.