Principles of Japanese Law of Succession
Abstract
The principles of the Japanese law of succession were rewritten after the end of World War II. The house system (ie seido) that made the eldest son the universal and sole heir of the house’s assets was replaced by a parentelic system of succession that is predicated on the equality of the sexes and individual dignity as stated in Article 24 of the postwar Constitution.
The death of the decedent marks the commencement of succession. The heirs have the right to claim for recovery of the estate if a third party violates their rights.
In the case of intestacy, the spouse and children are always heirs. Half the estate is distributed to the surviving spouse and the other half is divided equally between the children. However, the share of an illegitimate child is one-half that of a legitimate child. In matters of succession, an unborn child is presumed to have been born on the condition that he or she is born alive. Lineal ascendants are heirs of second rank, and siblings come third. A relative is not entitled to inherit as long as a relative of a preceding rank survives. The Civil Code also states several reasons for disqualification of inheritance and provides the opportunity for the decedent to disinherit heirs at law.
Upon commencement of succession, an heir takes over all the rights and duties pertaining to the property of the decedent, which includes assets as well as liabilities. In cases where more than one heir exists, the decedent’s property is jointly owned by all heirs until partition. Heirs can effect the partition of estate by their agreement. In cases where the heirs cannot reach an agreement, the family court divides the estate in accordance with the statutory shares.
The inheritance passes to the entitled heir irrespective of the right to disclaim it. The heir has the right to unconditional acceptance, qualified acceptance, which limits the liability of the heir to the inheritance, or to renounce the inheritance. Rather uncommon in practice is the opportunity to make a will (igon). The Civil Code provides three different kinds of ordinary wills: holographic will, will by notary and secret will. All forms of wills have to meet the legal formalities to be valid. The testamentary freedom permits the testator to give his property to anyone. However, the compulsory share (iryû-bun) is a legally secured portion of the estate to which the descendants of the testator, the spouse and lineal ascendants are entitled. Basically, the amount of the compulsory share is one-half of the estate; lineal ascendants can only claim for one-third.
