jwb@csse.monash.edu.au wrote:
> Apud Kevin Gowen <kgowen@nogmailspam.com> (fj.life.in-japan) hoc legimus:
> 
>> I don't know about Australian law, but my guess is that your Australian
>> will could distribute your personal property that is located within
>> Japan, but not any real property holdings you have in Japan.
> 
> ANAL, but that surprises me. I thought there was fairly wide 
> international recognition of wills when it came to transfer of
> property, real or otherwise. The agency which registers real property
> transfers in NSW would almost certainly action a transfer resulting
> from the will of a Japanese national who owned land in NSW. I'd be
> surprised if someone like Declan bought land in Japan, then fell off the
> twig, then Japanese law would treat him as intestate unless he (also)
> had a Japanese will.

My guess (and it is a guess) was based on my knowledge of American
probate law (I don't practice probate law, so I am going off law school
knowledge). For example, a Florida court lacks jurisdiction over real
property located in Georgia, so if I die in Florida where I have my
will, there is probably going to need to be an ancillary probate in
Georgia to dispose of that property. I similarly assumed that Australian
courts lacked jurisdiction over real property located in Japan. But, I
am not licensed in Australia or Japan.

There is also the issue of what constitutes a valid will in each
jurisdiction. For example, in some US states, holographic wills (wills
written in longhand by the testator, usually unwitnessed) are
recognized. Florida does not recognize unwitnessed holographs. I've not
read the Japanese or Australian laws on this issue, but it's at least a
possibility.

Another wrinkle is that Australia is an Anglo-American common law
system, while Japan is a quasi-civil law system. For example, there is
no equivalent to the 公証人 in Australia.

(this is where Sean gets offended because I said that Japan is not a
common law state)

> My copy of "Now You Live in Japan" (Japan Times) has about 10
> pages on wills and inheritance tax. It says: "Inheritance is
> processed according to the laws of the deceased's country..."

That surprises me, especially in the cases where the deceased's country
has numerous estate laws, such as the US, where we have at least 51
different statutes on the topic. But, maybe the folks who wrote that
guide were Japanese attorneys. If so, I'd have to seriously reconsider
my guess.

- Kevin

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