Japanische Testamente vor deutschen Nachlassgerichten

Abstract

When issuing certificates of inheritance, German probate courts from time to time have to deal with the interpretation of a will drafted by a Japanese citizen who was living in Germany at the time of his death. These wills have to be assessed under Japanese law, according to Art. 25 EGBGB. Requirements for validity in form are determined by the Hague Convention on the Conflict of Laws relating to the Form of Testamentary Dispositions. The Convention stipulates that local form requirements suffice. Whereas in Germany the will has to be written and signed by the decedent, Japanese succession law requires the decedent to state his name and apply his personal seal. Sometimes the question arises of how the court has to deal with the appointment of an heir (Erbeinsetzung), a legal concept unknown under Japanese law. Most often, it will be possible to interpret the stipulation in the will as a so called universal or special designation of share in inheritance (hōkatsu izō or tokutei izō). In both cases the beneficiary, even though treated in the same way, is not regarded as an heir. It is impossible to change the legal status of legal heirs as such through a will. What can be changed however, is the legally defined share in inheritance. The freedom of the decedent to make a will and set the shares is limited by regulations regarding compulsory portions.