日本法トピックス「重要判例」No. 2026-2 “Can an Apparent Heir Acquire Title by Prescription before the Limitation Period for the True Heir’s Claim for Recovery of Inheritance Expires under Japanese Law? ” （橋本有生（法学学術院教授））

＊NOTE 

The following decision is among the most significant judgments of the Supreme Court of Japan on family law delivered in 2024 that could not be included in the Waseda Bulletin of Comparative Law, No. 44, published by the Institute of Comparative Law, due to space limitations. 

 

Can an Apparent Heir Acquire Title by Prescription before the Limitation Period for the True Heir’s Claim for Recovery of Inheritance Expires under Japanese Law?  

 

 X v. Y1, Y2, Y3 and A 

The Third Petty Bench of the Supreme Court, March 19, 2024 

2022 (Ju) 2332, 78 (1) Minshu 63 

 

Summary: 

In this case, the appellee X filed an action against Y1, who are nephews of the decedent B, as well as Y2 and Y3, who were appointed as executors under the will, seeking, inter alia, a declaratory judgment that the appellants hold no claim against X to demand the registration of the transfer of shares in the real property at issue. The central issue was whether X, as an ostensible heir against whom an action to recover an inheritance may be brought, is able to acquire ownership of the property inherited by the true heir through acquisitive prescription (Article 162 of the Civil Code), even before the expiry of the period of extinctive prescription for filing an action to recover an inheritance under Article 884 of the Civil Code. 

The court of first instance (Tokyo District Court, Judgment of January 14, 2021, 53 Family Court Journal 53) and the court of prior instance (Tokyo High Court, Judgment of July 28, 2022, 1518 Hanrei Times 113) both determined that the X was able to acquire the property by prescription, notwithstanding that the extinctive prescription period for the inheritance recovery claim had not yet expired. 

The Supreme Court upheld this view and held that “an ostensible heir against whom an action to recover an inheritance may be brought may acquire ownership of the property inherited by the true heir by prescription, even before the expiry of the extinctive prescription period for the right to bring such an action.”     

Accordingly, this judgment clearly recognizes that a universal legatee, who has the same rights and obligations as a statutory heir under Article 990 of the Civil Code, is entitled to exercise the right to file for the recovery of a succession. Furthermore, it affirms that, notwithstanding the application of Article 884 of the Civil Code concerning the extinctive prescription of such right, the ostensible heir may acquire ownership of the property by prescription pursuant to Article 162 even before the expiry of the said prescription period. The judgment is therefore of considerable theoretical and practical importance. (Kato, 2024). 

 

References: 

Civil Code  

・Article 162 (Acquisitive Prescription of Ownership) 

 (2)  A person that possesses the property of another for 10 years peacefully and openly with an intention to own it acquires ownership thereof if the person was acting in good faith and was not negligent at the time when the possession started. 

・Article 884 (Right to File for the Recovery of a Succession) 

The right to file for the recovery of a succession is extinguished by the operation of the prescription if it is not exercised within five years of the time when the heir or the legal representative thereof learns of the fact that the right of inheritance has been infringed. The same applies when twenty years have elapsed from the time the succession opened. 

 

Parties: 

・The appellee. 

X, who was adopted by decedent, B. B is the elder sister of X’s biological mother, C.  

・The appellants. 

A, who is the biological brother of X and a nephew of B. Y1, who is the son of another sister of B and C, and is also a nephew of B; and Y2 and Y3, who were appointed as the executors of B’s will. 

 

Facts: 

At the relevant time, X, A, B, C, and the parents of B and C all lived together in the real property at issue, which was registered in B’s name. 

In 2001, B prepared the following two documents at Y1’s residence: (i) a holographic will stating that B’s estate shall be equally divided among Y1, A, and X; (ii) a deed of gift granting 35 million yen to Y1 as an inter vivos gift. These documents were not sealed, were handed over to Y1, and it is presumed that Y1 was aware of their content during B’s lifetime. 

In 2002, X filed for the commencement of guardianship over B and was appointed as B’s guardian. 

On February 13, 2004, B passed away, and X was the sole legal heir to B. From February 14 of that year onward, X possessed the real property with the intention to own it and, in March 2004, completed registration of the transfer of ownership by reason of inheritance. 

After B’s death, Y1 filed several lawsuits against X, including an action seeking confirmation of the invalidity of the adoption between B and X, and actions seeking confirmation of a dissolution of the adoptive relationship and equal distribution of B’s estate. However, all such claims were dismissed or otherwise unsuccessful. 

In 2017, Y1 filed a suit against X seeking payment of 35 million yen on the grounds of a gift on the donor’s death, a conditional inter vivos gift, or a legacy from B to Y1. Y1 submitted the abovementioned deed of gift as evidence. However, in May 2018, the court rendered a judgment against Y1, which became final and binding. 

In 2018, Y1 filed a petition with the Tokyo Family Court for probate of the will described in (i) above, and in January 2019, Y2 and Y3 (both attorneys) were appointed as executors of the will. However, until the time of this petition, X and A had never been informed by Y1 or others of the existence of the will. X believed without negligence, that X was the sole owner of the real property. 

In February 2019, X manifested the intention to invoke acquisitive prescription against the appellants and A with regard to the co-ownership interests held by Appellant Y1 and A in the real property. 

In 2019, X filed the present action against Y1 and A, seeking a declaratory judgment confirming that no right exists to demand registration of the transfer of co-ownership interests in the real property. 

Opinion: 

The final appeal is dismissed. 

The costs of the final appeal shall be borne by the appellants of the final appeal. 

Firstly, the “extinctive prescription of the right to file for the recovery of a succession prescribed in Article 884 of the Civil Code and acquisitive prescription of ownership prescribed in Article 162 of the same Code are different systems that have different requirements and effects, and they do not fall under a relationship between special law and general law”. 

Secondly, under the Civil Code or any other laws and regulations, there is no provision that prevents an ostensible heir, who is the respondent in a claim for the recovery of a succession, from acquiring, by acquisitive prescription, property inherited by the true heir before the expiry of the period of extinctive prescription. 

Thirdly, the purpose of Article 884 of the Civil Code is to determine quickly and finally the legal attribution arising from succession. Therefore, it is inconsistent with this purpose to construe that acquisitive prescription is precluded solely because the extinctive prescription period for the right to file for the recovery of a succession has not yet expired, despite the fact that the ostensible heir satisfies the requirements for acquisitive prescription. 

Accordingly, it is appropriate to construe that the ostensible heir may acquire, by acquisitive prescription, ownership of property inherited by the true heir even before the expiry of the period of extinctive prescription with regard to the right to file for the recovery of a succession. The same applies in cases where the universal legatee holds the right to file for the recovery of a succession. Consequently, the appellee, X, is able to acquire, by prescription, the co-ownership interests in the real property held by the appellant Y1 and A. 

The judgments of the Daishin–in―the judgment of July 10, 1911 (1911 (O) 56, 17 Minroku 468; hereinafter the “1911 Daishin–in Judgment”) and the Judgment of February 9, 1932 (1931 (O) 2930, 11 Minshu 192, hereinafter  the “1932 Daishin–in Judgment”)―concern the right to file for the recovery of a succession based on the family estate succession system under the Civil Code prior to its amendment by Act No. 222 of 1947, and the above reasoning does not conflict with those precedents. 

Editorial Note: 

There has long been a divergence of opinions among Daishin–in (the former Supreme Court of Japan) precedents, high court decisions, and academic theories regarding whether an ostensible heir, who is the respondent in a claim for the recovery of a succession, may invoke acquisitive prescription under Article 162 of the Civil Code for property inherited by the true heir, even before the expiration of the extinctive prescription period provided in Article 884 of the Civil Code (Mochikawa, 2021). 

When the Meiji Civil Code was drafted, a unique short extinctive prescription period was introduced under the “Ie (family) system” to promptly confirm the legal status of the kato-ku successor (the head of the household), who occupied a central position in that system. Under such a conception, the right to file for the recovery of a succession governed the recovery of all inherited property and, unless it had expired by prescription, recovery of such property was permitted without limitation (Maeda et al., 2024, pp. 370-377). Based on this understanding, the 1911 and 1932 Daishin–in judgments both adopted the view that the invocation of acquisitive prescription should be denied, reasoning that the provision stipulating the prescription period was a special short-term limitation. 

However, the 1947 revision of the Civil Code abolished the family estate succession system, and the scope of the right to file for the recovery of a succession shifted from the succession of household status to rights and obligations relating to inherited property. Nevertheless, the short extinctive prescription period originally designed for the prewar family system was left intact without re-examination (Kubota, 2017, p. 525). The five-year prescription period has come to be regarded as aiming to promptly and finally determine legal relationships concerning succession (Ninomiya, 2021, p. 371). 

From this standpoint, denying the invocation of acquisitive prescription may in fact prolong succession disputes and run counter to the purpose of the prescription period under Article 884. Many scholars argue that extinctive prescription and acquisitive prescription are fundamentally distinct in nature and do not interfere with one another (Wagatsuma, 2024, pp. 323-329; Ninomiya, 2021, p. 375). Therefore, even where the extinctive prescription period has not yet expired, the ostensible heir should be permitted to invoke acquisitive prescription (Uchida, 2004, p. 446; Shiomi, 2019, p. 579; Maeda et al., 2024, p. 377). The reasoning of the present judgment may also be seen as aligning with these academic views (Maeda, 2024). 

Notably, the prior instance and the final appellate instance in this case relied on different rationales in recognizing acquisitive prescription. The court of prior instance pointed out that if the reasoning of the 1911 Daishin–in judgment were adopted, a coheir who possesses in good faith and with reasonable grounds would be denied the benefit of acquisitive prescription, while a coheir in bad faith or without such grounds would be able to acquire ownership by acquisitive prescription, thereby resulting in an imbalance. To avoid such an imbalance, the court held that acquisitive prescription should be permitted where the possessor is in good faith and has reasonable grounds. 

In contrast, the Supreme Court did not rely on this “imbalance theory.” It first determined that denying the invocation of acquisitive prescription would undermine the purpose of Article 884, and further pointed out that the family estate succession system assumed in the 1911 and 1932 Daishin–in judgments had already been abolished and no longer conforms to the current legal framework. Adopting the imbalance theory as proposed by the prior instance may rather lead to the consequence that the true heir can indefinitely seek recovery until the prescription period is completed, thereby potentially impairing legal stability in succession relationships (Kaneko, 2024). 

Moreover, in the judgment of April 17, 1979 (the Supreme Court, 929 Hanji 67), the Supreme Court also denied the invocation of acquisitive prescription by a coheir lacking reasonable grounds. Thus, the rationale of imbalance as presented by the prior instance lacks validity (Maeda, 2024). For these reasons, the Supreme Court’s decision not to adopt the imbalance theory may be regarded as a sound judgment. 

In addition, this judgment is also significant in that it confirms that the same reasoning applies where the person holding the right to file for the recovery of a succession is a universal legatee (Kato, 2024). 

However, in this case the respondents are all universal legatees, and X, as the ostensible heir, could be regarded as having been in good faith and with reasonable grounds. Thus, the applicability of the legal reasoning presented in this judgment may be limited to similar factual scenarios (Kaneko, 2024). Furthermore, academic debate remains over the nature of the right to file for the recovery of a succession, the justification and appropriateness of its short five-year prescription period, and the scope of its application. The theoretical basis and scope of the right to file for the recovery of a succession remain contested. Further theoretical examination and the accumulation of judicial precedents will therefore be necessary. 

(See Mochikawa, M. (2021). “A Study on the Right to File for the Recovery of a Succession under Japanese Succession Law,” Hiroshima University of Economics Review, 43(3), 55; Maeda, Y., Motoyama, A., & Urano, Y. (2024). Civil Code VI: Family and Inheritance (7th ed., p. 370-377). Yuhikaku; Maeda, Y. (2024). “Whether Acquisitive Prescription may be Invoked before the Extinctive Prescription Period for the Right to Recover Inheritance has Expired,” Shin Hanrei Kaisetsu Watch: Civil Law (Family Law), (156), 3; Kubota, A. (2017). Family Law (3rd ed., p. 525). Yuhikaku; Ninomiya, S. (2021). Family Law (5th ed., p. 371). Shinseisha; Wagatsuma, S., Ariizumi, T., Endo, H., Kawai, T., & Nomura, T. (2024). Family Law and Inheritance Law 3 (5th ed., p. 323-329). Keiso Shobo; Ninomiya, S. (2021). Family Law (5th ed., p. 375). Shinseisha; Uchida, T. (2004). Civil Law IV: Family and Inheritance (Revised ed., p. 446). University of Tokyo Press; Shiomi, Y. (2019). Annotated Inheritance Law, (p. 579). Kobundo; Kaneko, Y. (2024). “Whether Acquisitive Prescription may be Invoked before the Expiration of the Extinctive Prescription Period for the Right to Recover Inheritance,” Shin Hanrei Kaisetsu Watch: Civil Law (Family Law), (159), 2-4; Kato, M. (2024). “Whether Acquisitive Prescription may be Invoked by an Ostensible Heir before the Expiration of the Extinctive Prescription Period for the Right to Recover Inheritance: Supreme Court Judgment, 3rd Petty Bench,” March 19, 2024. Hogaku Kyoshitsu, (526), 105.)