European Union Regulation on International Succession

By Yoshihiro Uetani

If a person of foreign nationality residing in Japan dies, many issues will arise including who are the deceased person’s heirs, how the deceased person’s estate should be divided, what assets and liabilities are subject to succession, the validity of any will, and how the will should be executed. Regarding these issues, the first problem to address is deciding which country’s laws apply, then dealing with the issues in accordance with the applicable law (“the governing law”). Most countries have established laws for deciding the governing law (called “private international law”); in Japan the relevant Act on General Rules for Application of Laws (Law No. 78 of 2006, “the General Rules”) was passed in June 2006.

Relevantly, the General Rules specify that “inheritance shall be governed by the national law of the decedent” (Article 36) and “the formation and effect of a will shall be governed by the national law of a testator at the time of the formation” (Article 37). According to these provisions, each of the above-mentioned issues are to be dealt with in accordance with the national law of the deceased person’s country. However, the General Rules also provide that “in cases where the national law of a party concerned shall govern and the application of that national law provides that Japanese law shall apply, Japanese law shall govern.” (Article 41), which is known as “renvoi”. Although the provisions of the General Rules are clear, there are many cases in the actual administration of the estate of deceased foreign nationals that are difficult, even for lawyers, because a correct understanding of foreign law is necessary to be able to investigate the details of the national law of the deceased person and determine whether the national law recognises renvoi.

Regarding succession of a deceased person who was a citizen of a European Union member state (excluding the United Kingdom, Republic of Ireland and Kingdom of Denmark), a revolutionary regulation called the “REGULATION (EU) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession” (“the EU Succession Regulation”) came into force on 17 August 2015. According to the EU Succession Regulation, the governing law for succession shall in principle be “the law of the State in which the deceased had his habitual residence at the time of death” (Article 21 (1)), and this principle shall apply even if that country is not a member of the EU (Article 20). As a result, if a citizen of an EU member state had their last habitual residence in Japan, then the governing law for succession of the estate will in principle be Japanese law. However, the EU Succession Regulation defines that, as an exception, if the deceased person was manifestly more closely related to a country other than the country of last habitual residence, then that country’s law shall be the governing law (Article 21 (2)). However, it seems that this exception provision would rarely apply to people who have been long-term residents of Japan.

On the other hand, the EU Succession Regulation also permits a person to select either the law of their nationality at the time of making the selection, or the law of their nationality at the time of their death, as the governing law for their succession (Article 22 (1)). This selection is generally required to be expressed in a will (Article 22 (2)). Accordingly, for citizens of EU member states who habitually reside outside of their country of nationality, such as those residing in Japan, it is necessary to select the governing law in a will if they want their national law to be the governing law of their succession.

Regarding wills, Japan and the major EU countries are signatories to The Hague International Conference on Private International Law’s “Convention on the Conflicts of Laws relating to the Form of Testamentary Dispositions” (concluded 5 October 1961). Under the EU Succession Regulation, a will is valid if it complies with the law of the country where it was made (Article 27 (1)). As a result, if a EU citizen residing in Japan prepares a will that complies with Japan’s Civil Code, then the will’s formal validity will be recognised.

To summarise the above, if an EU citizen residing in Japan dies without making a valid will, the issues surrounding that person’s succession will in principle be dealt with pursuant to Japanese law. If such an EU citizen prepares a will that complies with Japan’s Civil Code, then the will’s formal validity will be recognised. In that case, Japanese law will apply to the succession under the will unless the person specifies their national law as the governing law. In other words, the wills and succession of EU citizens who have their final residence in Japan will in principle be handled in accordance with Japan’s Civil Code, in the same manner as for Japanese citizens.

(Translated from the original Japanese)