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2015 (Kyo) 11

2016.12.19
2015 (Kyo) 11
Minshu Vol. 70, No. 8
Decision on whether jointly inherited ordinary deposit claims, ordinary savings claims, and time deposit claims are subject to a division of the inherited property
Case of appeal with permission against a ruling to dismiss an appeal against a ruling on division of inherited property
Decision of the Grand Bench, quashed and remanded
Osaka High Court, Decision of March 24, 2015
Jointly inherited ordinary deposit claims, ordinary savings claims, and time deposit claims are all subject to a division of the inherited property instead of being automatically divided between the joint heirs according to their shares in inheritance upon the commencement of inheritance.

(There are concurring opinions and an opinion.)
Articles 264, 427, 898, and 907 of the Civil Code



Civil Code

Article 264 The provisions of this Section shall apply mutatis mutandis to the cases where two or more persons share property rights other than the ownership; provided, however, that this shall not apply if laws and regulations provide otherwise.

Article 427 In cases there are more than one obligee or obligor, unless any other intention is manifested, each obligee or each obligor shall have the equally proportionate rights or obligations.

Article 898 If there are two or more heirs, the inherited property shall belong to those heirs in co-ownership.

Article 907 (1) Joint heirs may at any time divide inherited property by agreement except in the case where this is prohibited by the decedent's will pursuant to the provision of the following Article.

(2) If agreement is not, or cannot be, settled between joint heirs regarding division of inherited property, each of the joint heirs may make an application to the family court for a division of the inherited property.

(3) In the case referred to in the preceding paragraph, if there is a special reason, the family court may prohibit the division of the inherited property, in whole or part, for a specified period.
The decision of prior instance is quashed.

This case is remanded to the Osaka High Court.
Reasons for the Petition for Appeal from a Ruling by the Counsels for the Appeal, KUBOI Kazumasa and others



1. This is a case of petition for a division of decedent A’s estate between the appellant and the appellee who are the joint heirs of A.

2. The outline of facts related to the case which became final and binding in the judgment of prior instance is as described below:

(1) The appellant is a child of A’s younger brother and is an adopted child of A. The appellee is a child of person B, who was A’s younger sister and was adopted by A (and died in 2002).

(2) A died on March XX, 2012. A’s legal heirs are the appellant and the appellee.

(3) In addition to the real property (which was valued at 2,581,995 yen in total; hereinafter referred to as the “Real Property”) listed in the list of the decedent’s assets shown in the exhibit submitted in the first instance, A owned the deposit and savings claims listed in the list of deposits and savings shown in the exhibit (hereinafter collectively referred to as the “Deposits and Savings”) (the exhibit not attached hereto). No agreement has been made between the appellant and the appellee that the Deposits and Savings are subject to a division of the inherited property.

B had received from A a gift of approximately 55,000,000 yen, which constitutes the appellee’s special benefit.

3. Based on the facts described above, the court of prior instance concluded that the appellant should obtain the Real Property, on such grounds as that the Deposits and Savings were automatically divided and obtained by the heirs according to their respective shares in inheritance upon the commencement of inheritance, and were not subject to a division of the inherited property without the consent of all heirs.

4. However, the above conclusion of the court of prior instance is not acceptable for the following reasons.

(1) If there are several heirs, each joint heir succeeds to the rights and obligations of the decedent upon the commencement of inheritance and, with respect to such part of the inherited property as becomes vested jointly in the joint heirs upon the commencement of inheritance, the joint heirs have to follow the procedure for dissolving their co-ownership of such part of the inherited property according to their respective shares in inheritance (Articles 896, 898, and 899 of the Civil Code). Although the co-ownership in this situation is not essentially different from the co-ownership as set forth in Article 249 et seq. of the same act (see Supreme Court, 1953 (O) No. 163, Judgment of the Third Petty Bench of May 31, 1955, Minshu Vol. 9, No. 6, p. 793), dissolution of that co-ownership without agreement requires, instead of an ordinary action for division of jointly owned property, a ruling for division of the inherited property (Article 906 and Article 907, paragraph (2) of the same act), which is a judicial procedure specially provided to comprehensively appraise the value of the inherited property and to take each joint heir’s circumstances into consideration (see Supreme Court, 1972 (O) No. 121, Judgment of the Second Petty Bench of November 7, 1975, Minshu Vol. 29, No. 10, p. 1525). The joint heirs’ specific shares in inheritance that are determined by taking special benefits and other factors into consideration serve as the basic shares in heritance in the procedure (Articles 903 through 904-2 of the same act). Thus, since the mechanism of division of inherited property is intended to ensure the substantive fairness between the joint heirs in their succession to the decedent’s rights and obligations, it is generally desirable to subject the decedent’s property as broadly as possible to the procedure for division of the inherited property. In addition, from a practical point of view in conducting the procedure for division of the inherited property, there seems to be a wide demand for the coverage by the procedure for division of the inherited property of such property as cash, i.e., types of property that involve few uncertainties in valuation and contribute to making adjustments in determining the specific way to divide the inherited property.

In the meantime, deposits and savings, which are at issue in the present case, are considered similar to cash, in that they are property contributing to making adjustments in determining the specific way to divide the inherited property. While a deposit/savings contract has the nature of deposit for consumption, affairs to be dealt with by the financial institution under a deposit/savings contract include not only refund of the deposit/savings but also a number of affairs that have the nature of mandated or quasi-mandated affairs, such as acceptance of incoming transferred funds, automatic payment of various charges, and automatic renewal of time deposits (see Supreme Court, 2007 (Ju) No. 1919, Judgment of the First Petty Bench of January 22, 2009, Minshu Vol. 63, No. 1, p. 228). Based on this, the character of deposits and savings as a means of settlement has become stronger, as seen in such facts as that ordinary savings accounts and similar instruments are commonly used to receive wages, various pension benefits, etc., that automatic debit is widely used to pay utility charges and credit card bills, and that time deposits are used as security for overdrafts in transactions on a multipurpose account. In addition, it is not common that the existence and amount of a savings or deposit claim are disputed, for such reasons as that deposits and savings in general are covered by deposit insurance or similar arrangements which secure payment of a certain amount of principal and corresponding interest (Chapter 3, Section 3 of the Deposit Insurance Act, among others), that the refund procedure is easy to follow, and that the financial institution owes to the depositor an obligation to disclose transaction history of the deposit/savings account (see id., Supreme Court, Judgment of the First Petty Bench of January 22, 2009). This suggests that division of a deposit or savings claim will not result in a decrease in its value. For these reasons, deposits and savings have been regarded as property whose differences from cash are relatively negligible in that depositors can convert them into cash reliably and easily.

In the case of joint inheritance, it has been a common practice to subject deposit and savings claims to a division of the inherited property with the consent of the parties to the procedure for division of the inherited property, despite the basic understanding that divisible claims in general are automatically divided between the joint heirs according to their respective shares in inheritance upon the commencement of inheritance. This practice is understood as based on the circumstances described above.

(2) Based on the viewpoints described above, we now consider whether or not the Deposits and Savings may be subject to a division of the inherited property regardless of whether or not all heirs have consented, while taking a close look at the details and nature of the Deposits and Savings.

(a) First, let us consider the deposit and savings claims listed in Nos. 1 through 3, 5 and 6 of the list of deposits and savings shown in the exhibit.

An ordinary savings contract and an ordinary deposit contract are a continuous transaction contract which allows the depositor to make deposits and withdrawals freely at any time once the account has been opened by entering into the contract. Upon each deposit into the account, a deposit-for-consumption contract for the amount of the deposit is deemed concluded. The resulting deposit/savings claim is added to the existing deposit/savings claim on the account and the total claim is handled as a single deposit/savings claim. An ordinary savings contract and an ordinary deposit contract continue even though the deposit/savings balance becomes nil, and upon any subsequent deposit a deposit/savings claim for the amount of the deposit accrues. Thus, an ordinary savings/deposit claim is ever changeable in amount while maintaining its identity as a single claim. This nature remains the same even if the depositor dies. Specifically, upon the depositor’s decease, an ordinary savings/deposit claim is vested in all joint heirs. An analysis of the manner in which such claim is vested in them results in an understanding that the claim is managed on the account and, unless the deposit/savings contract is terminated by all of the joint heirs who share quasi-co-ownership of the status in the deposit/savings contract, will continue to exist in an ever changeable amount of balance while maintaining its identity, without being divided between the joint heirs as a fixed amount of claim. While it is possible to calculate the amount corresponding to each joint heir’s legal share in inheritance at the time of commencement of inheritance, this amount should be considered merely notional since the deposit/savings contract has not been terminated. An understanding that a deposit/savings claim is automatically divided between the joint heirs according to their respective shares in inheritance based on the amount of balance at the time of commencement of inheritance and that, upon each subsequent deposit into the account, a deposit/savings claim accrues for each joint heir in the total amount obtained by adding his/her share in the amount of the deposit to his/her share in the existing balance which was divided between and vested in the joint heirs, would compel the parties to the deposit/savings contract to make complicated calculations and would even be contrary to the reasonable intention of the contract.

(b) Next, let us consider the time deposit claim listed in No. 4 of the list of deposits and savings shown in the exhibit.

With respect to fixed-term postal savings, which are the predecessor of the time deposit in question, the Postal Savings Act provides that a fixed period of deposit shall be set and a fix amount of money shall be deposited on condition that no withdrawals shall be made during such period (Article 7, paragraph (1), item (iv)), and that in exceptional cases where savings shall be allowed to be withdrawn during the period of deposit, a portion of the deposit shall not be refunded (Article 59 and Article 45, paragraphs (1) and (2)). It is understood that the intention of the act in restricting partial withdrawals of fixed-term postal savings is, as with fixed-amount postal savings and with time deposits handled by banks and other commercial financial institutions, to standardize and simplify the affairs involved in fixed-term postal savings by facilitating the management of savings, out of the necessity to promptly and uniformly deal with a large volume of affairs for a large number of depositors.

As a result of the enforcement of the Postal Service Privatization Act, Japan Post was dissolved and all banking services that had been conducted by Japan Post were taken over by JAPAN POST BANK Co., Ltd. In addition to ordinary savings, fixed-amount savings, etc., JAPAN POST BANK accepts time deposits, and since the basic terms and conditions of such time deposits seem to be no different from those of fixed-term postal savings, it is understood that partial withdrawals of such time deposits are restricted under the contract for the same reason as with fixed-term postal savings. While it is commonly known that the interest rates for time deposits are higher than those for ordinary deposits, the aforementioned restriction is, together with the condition that no withdrawals are permitted during the period of deposit, constitutes a premise for the higher interests rates for time deposits and should be regarded as an essential element of the time deposit contract rather than a mere special agreement thereunder. Accordingly, an understating that a time deposit claim is divided upon inheritance may trigger a situation where the amount of claim including corresponding interest has to be calculated, which is contrary to the intention of standardizing and simplifying the affairs involved in time deposits. On the other hand, even if such understanding is adopted, the joint heirs will have to jointly demand a refund of the total amount and none of them will be allowed to exercise the claim independently, as long as the aforementioned restriction is imposed on the claim. It is therefore meaningless to adopt such understanding.

(c) If we take a look at the details and nature of the various deposit and savings claims as described above while taking into consideration the nature and other characteristics of deposits and savings in general as shown in (1) above, it is reasonable to understand that jointly inherited ordinary savings claims, ordinary deposit claims, and time deposit claims are all subject to a division of the inherited property without being divided between the joint heirs according to their respective shares in the inheritance upon the commencement of inheritance.

(3) For the reasons described above, the Judgment of the Third Petty Bench of the Supreme Court, April 20, 2004, 2003 (Ju) No. 670, Shumin No. 214, p. 13, and other precedents of the Court that are inconsistent with the view described above should all be changed.

5. Based on the above, the conclusion of the court of prior instance that the Deposits and Savings are not subject to a division of the inherited property contains a violation of law which would obviously affect the decision. The gist of the argument of the petition for appeal is well-grounded on this basis, and therefore the decision of prior instance should inevitably be quashed. We now remand this case to the court of prior instance in order to have it further and fully hear the case.

Accordingly, the Court unanimously decides as set forth in the main text. However, there is a concurring opinion of one of the justices, OKABE Kiyoko, a concurring opinion of five of the justices, OTANI Takehiko, ONUKI Yoshinobu, YAMASAKI Toshimitsu, KOIKE Hiroshi, and KIZAWA Katsuyuki, a concurring opinion of one of the justices, ONIMARU Kaoru, a concurring opinion of one of the justices, KIUCHI Michiyoshi, and an opinion of one of the justices, OHASHI Masaharu.

The concurring opinion of the justice, OKABE Kiyoko, is as follows:

Upon the commencement of joint inheritance, the inherited property is jointly owned by the joint heirs according to their respective shares in the inheritance under Articles 898 and 899 of the Civil Code. This also applies if the property is a claim for payment of money. While such a claim is regulated by Article 264 of the Civil Code, it has been understood, under Article 427 of the Civil Code, which is a special provision of Article 264 of the same code, that such a claim is divided between the joint heirs, resulting in the same number of claims as the number of joint heirs. However, since a state of quasi-co-ownership first occurs upon joint inheritance as described above, it is possible to understand that if there are any factors preventing division of the inherited claim, the claim continues to exist in quasi-co-ownership without being divided. As pointed out by the majority opinion, it is true that, while the essence of an ordinary savings contract (including an ordinary deposit contract; hereinafter the same applies) is a deposit-for-consumption contract, this is not all—an ordinary savings contract is frequently accompanied by a quasi-mandate contract for such services as automatic debit, which has strengthened the character of ordinary savings as a means of settlement. This follows that if an ordinary savings claim is jointly inherited, the joint heirs concurrently succeed by inheritance to the rights and obligations under the quasi-mandate contract. For instance, termination of the automatic debit contract must be done by all of the joint heirs under Article 251 of the Civil Code, since it is an exercise of a formative right that is indivisible by its nature, and since it is also an act of disposition. However, if a deposit/savings claim is automatically divided between the joint heirs and if each joint heir is allowed to exercise his/her own rights, any one of the joint heirs may withdraw the full amount of his/her share in the deposit/savings and may no longer need to exercise his/her deposit/savings claim, which may result in a hindrance to the handling of the deposit/savings contract itself or the automatic debit contract, etc. This also inevitably creates a situation where individual joint heirs’ exercise of their deposit/savings claim will result in several deposit/savings claims in different amounts of balance for different joint heirs under a single deposit/savings contract or on a single account. This can be regarded as a situation that is contrary to the nature of an ordinary savings claim, which continues to exist as a single claim by maintaining its identity despite changes in the balance as a result of deposits and other transactions. This would also be inconsistent with the intention of the parties to the ordinary savings contract. In the case of joint inheritance, it is possible to understand that an ordinary savings claim cannot be exercised individually by the joint heirs but remains in quasi-co-ownership. For the above reasons, the majority opinion’s conclusion would be acceptable only if a deposit/savings claim is jointly inherited.

In the meantime, I am of the opinion that, in light of the literal meaning of Articles 903 and 904-2 of the Civil Code and their intention to realize substantive fairness between joint heirs, while divisible claims are automatically divided upon joint inheritance, they should be understood as being included in the “property belonging to the decedent at the time of commencement of inheritance” as referred to in the above articles, and that each joint heir’s specific share in inheritance should be calculated based on the total amount of the inherited property, including the amount of divisible claims so divided, and each joint heir’s final amount of share should be calculated by subtracting the amount of his/her share obtained as a result of such division. Formerly, deposit/savings claims had been considered to be included in divisible claims that are automatically divided. However, I would like to agree with the majority opinion based on the history in which the Supreme Court has little by little widened the scope of rights included in the property included in a division of the inherited property by meticulously analyzing the nature of rights, and on the appropriateness of, and the theoretical possibility of adopting, the conclusion that it is desirable to subject deposit/savings claims to a division of the inherited property. However, there are various other divisible claims that are considered to be automatically divided, and deposit/savings claims may transform into such claims. I believe it reasonable that these claims should be included in the basis of calculation of joint heirs’ specific shares in inheritance, as described above.

The concurring opinion of the justices, OTANI Takehiko, ONUKI Yoshinobu, YAMASAKI Toshimitsu, KOIKE Hiroshi, and KIZAWA Katsuyuki, is as follows:

It has formerly been understood that deposit/savings claims are automatically divided between the joint heirs upon the commencement of inheritance, and that each joint heir is entitled to independently exercise his/her share in such claims. However, the majority opinion means that deposit/savings claims that are subject to a division of the inherited property have to be exercised jointly by all joint heirs until a division of the inherited property. This could raise a question as to whether or not an inability to obtain the consent of all joint heirs will cause any inconvenience if any part of the deposits and savings owned by the decedent need to be withdrawn before a division of the inherited property, due to such circumstances as the joint heirs needing to pay any obligations owed by the decedent or to pay immediate living expenses for any joint heirs who have depended upon the decedent. In such case, the joint heirs could utilize, under current law, a provisional order whose merits are an adjudication case for a division of the inherited property, such as, for instance, a provisional disposition to allow the relevant joint heirs to obtain specific deposit/savings claims included in the inherited property in order to prevent imminent danger to such specific joint heirs (provisional disposition for provisional division; Article 200, paragraph (2) of the Domestic Relations Case Procedure Act). This would deal with joint heirs’ need to individually exercise their rights while ensuring the substantive fairness between them.

There are naturally several types of cases where joint heirs need to withdraw deposits and savings, and it is necessary to discuss, for each of such types, requirements for granting a provisional order, such as the necessity for preservation, and how a prima facie showing should be made. It is desirable that discussions towards the appropriate operation of the procedure will take place in the affairs of family courts.

The concurring opinion of the justice, ONIMARU Kaoru, is as follows:

While I agree with the majority opinion, I would like to add my personal view regarding the handling of ordinary savings claims and ordinary deposit claims in a division of the inherited property, as follows:

1. Since a division of the inherited property is to dissolve the joint heirs’ co-ownership of the individual inherited assets that were vested in their co-ownership as a result of the decedent’s decease and to put them in sole ownership of each joint heir or in co-ownership as set forth in Part II, Chapter 3, Section III of the Civil Code, it is understood that assets subject to a division of the inherited property are undivided assets existing both at the time of commencement of inheritance and at the time of division. As stated in the majority opinion, since an ordinary savings/deposit claim is not automatically divided upon the commencement of inheritance, if there are several heirs, the joint heirs quasi-jointly own this claim in the amount of balance at the time of commencement of inheritance, and this claim is subject to a division of the inherited property. On the other hand, if a deposit is made into a deposit/savings account in the name of the decedent after the commencement of inheritance, the joint heirs do not, as a direct result of inheritance, obtain the ownership of the amount by which the balance increased as a result of such deposit, and it was not necessarily clear if such amount is subject to a division of the inherited property.

However, as stated in the majority opinion, the aforementioned claim is managed on the corresponding account and, unless the deposit/savings contract is terminated by all joint heirs who are quasi-jointly a party to the deposit/savings contract, the claim will continue to exist in an ever changeable amount while maintaining its identity. Therefore, it is understood that if a deposit is made into a deposit/savings account in the name of the decedent after the commencement of inheritance, the joint heirs will, due to the nature of the aforementioned contract, quasi-jointly own a single deposit/savings claim in the total amount including the amount of such deposit.

One cannot then understand that out of a deposit/savings claim in the name of the decedent, the portion corresponding to the balance at the time of commencement of inheritance is subject to a division of the inherited property but the remaining is not; it is reasonable to understand that the entire claim is subject to a division of the inherited property. While the majority opinion does not clearly explain this point, I believe it reasonable to understand as above considering the legal nature of ordinary savings/deposit claims as stated in the majority opinion.

2. Based on the above understanding, a deposit/savings claim including all of the following incoming amounts is subject to a division of the inherited property: (i) any fruits borne by the inherited property after the commencement of inheritance; (ii) any so-called compensatory property, which reflects property that originally belonged to the inherited property at the time of commencement of inheritance and was subsequently lost from the inherited property as a result of disposal or any similar action and which was obtained by any of the joint heirs in consideration of or otherwise in respect of such action (for instance, insurance benefits received as a result of destruction of a building by fire, proceeds from a sale of land, etc.); and (iii) any payments of divisible claims automatically divided upon the commencement of inheritance that are made into the deposit/savings account under the name of the decedent (this is not inconsistent with the understanding that none of such fruits, compensatory property, and divisible claims is subject to a division of the inherited property). In this case, while the amount by which the balance has increased since the commencement of inheritance was not part of the deposit/savings claim at the time of commencement of inheritance, the joint heirs’ specific shares in inheritance are calculated based on the value of the inherited property at the time of commencement of inheritance (Articles 903 and 904-2 of the Civil Code). The question would thus be how the value of the inherited property based on which the joint heirs’ specific shares in inheritance are calculated should be understood. In this regard, while one possibility is to use the balance of the deposit/savings claim at the time of commencement of inheritance as the basis on which to calculate the joint heirs’ specific shares in inheritance, another possibility is, in the cases described in (ii) and (iii) above, to add to the basis of calculation of the specific shares in inheritance the value of the property which existed at the time of commencement of inheritance and which corresponds to the relevant incoming amount, since the property corresponding to the incoming amount existed in another form at the time of commencement of inheritance and the situation is different from such a case as where the value of real property which is part of the inherited property has increased since the commencement of inheritance. However, while it is desirable from a procedural point of view to conclusively determine the joint heirs’ specific shares in inheritance at an early stage because such shares mean the proportions in the total value for calculation purposes or in the total amount of inherited property corresponding to such value based on which division is made in the procedure for division of the inherited property (see Supreme Court, 1999 (Ju) No. 110, Judgment of the First Petty Bench of February 24, 2000, Minshu Vol. 54, No. 2, p. 523), adopting the latter view would result in changeable specific shares in inheritance according to changes in the balance of deposits and savings after the commencement of inheritance. In some cases, this would leave some issues open in the context of the procedure for division of the inherited property, such as a delay in the conclusive determination of the joint heirs’ specific shares in inheritance. In the affairs of family courts, the assets listed in (i) through (iii) above seem to have been included in the basis of calculation of the specific shares in inheritance and/or been subjected to a division of the inherited property with the consent of all joint heirs. From the viewpoint of ensuring the substantive fairness between joint heirs, it would be desirable that this issue will be discussed in the future by taking also into consideration the balance with the handling in the past practice.

The concurring opinion of the justice, KIUCHI Michiyoshi, is as follows:

While I agree with the majority opinion, I would like to add my personal view as follows:

The majority opinion can be understood as concluding that the deposit and savings claims at issue in the present case are subject to a division of the inherited property regardless of whether or not all joint heirs have consented, based on the premise that the mechanism of division of inherited property is intended to dissolve the joint heirs’ co-ownership of the inherited property arising from the inheritance with the aim of ensuring the substantive fairness between the joint heirs, and that it is thus desirable to subject the decedent’s property as broadly as possible to a division of the inherited property, and also in light of the details and nature of those deposit and savings claims at issue by taking into consideration the fact that deposits and savings are quite similar to cash and are property contributing to making adjustments in a division of the inherited property.

In addition to the above points, I believe that the fact that a deposit/savings claim can be appraised at its par value constitutes another ground for the conclusion that deposits/savings claims are subject to a division of the inherited property regardless of whether or not all joint heirs have consented.

In an adjudication case regarding a division of inherited property, the values of individual inherited assets are required to be appraised in two settings, namely, calculation of each joint heir’s specific share in inheritance and determination of assets obtained by each joint heir. In the former setting, the value of, and the proportion corresponding to, each heir’s specific share in inheritance are calculated based on the value of the property owned by the decedent at the time of commencement of inheritance and that of any property whose value is returned to the inherited property as a bequest or a gift before the decedent’s decease, and after taking any contributory portions into account (Articles 903 and 904-2 of the Civil Code). In the latter setting, the property obtained by each heir is determined according to his/her specific share in inheritance after appraising the property existing at the time of division of the inherited property at the value at the time of division.

However, it is generally difficult to appraise a claim unless all heirs have agreed on its existence and its par value and actual value (i.e., appraised value). For this reason, an attempt to subject claims in general to a division of the inherited property may result in a situation where it is difficult to calculate each heir’s specific share in inheritance and to determine the property to be obtained by each heir, hindering the progress of the procedure for division of the inherited property and preventing adjudication on division of other assets in the inherited property. Considering that joint heirs are restricted from independently exercising their rights with respect to inherited assets in co-ownership, such a situation should be resolved as soon as possible.

In an adjudication case regarding a division of inherited property, the division of the inherited property is achieved by calculating the joint heir’s specific shares in inheritance after returning special benefits to the inherited property and taking contributory portions into consideration, in order to ensure the substantive fairness between the joint heirs. It is thus contrary to the intention of the system of adjudication on division of inherited property that, by attempting to subject claims in general to a division of the inherited property, it becomes difficult to calculate the joint heirs’ specific shares in inheritance, preventing adjudication on division of other assets in the inherited property and resulting in a continuing situation where restrictions are imposed on the joint heirs’ exercise of their rights with respect to the inherited property. Therefore, it is reasonable to understand that divisible claims whose par value cannot be regarded as its actual value (i.e., appraised value) are not subject to a division of the inherited property without the aforementioned consent but are automatically divided according to the joint heirs’ shares in inheritance upon the commencement of inheritance. In this regard, while Articles 903 and 904-2 of the Civil Code are located before Part V, Chapter 3, Section III, “Division of Inherited Property,” the aforementioned divisible claims that are not subject to a division of the inherited property are understood as not included in the “property belonging to the decedent at the time of commencement of inheritance” as referred to in these articles, because they are intended to calculate the joint heirs’ specific shares in inheritance based on which the inherited property is divided.

By contrast, in the case of a deposit/savings claim, its par value is regarded as its actual value (i.e., appraised value) in light of such factors as the reliability of payment and the easiness of converting it into cash. Unlike the aforementioned divisible claims, therefore, subjecting deposit/savings claims to a division of the inherited property does not make it difficult to make an adjudication on a division of the inherited property.

Therefore, it is reasonable to understand that deposit/savings claims are subject to a division of the inherited property regardless of whether or not all joint heirs have consented.

The opinion of the justice, OHASHI Masaharu, is as follows:

While I agree with the majority opinion’s conclusion that the decision of prior instance is quashed and this case is remanded to the court of prior instance, I would like to express my opinion as my reasons for the conclusion are different from those of the majority opinion.

1. The majority opinion can be understood as: acknowledging that the outcome of the division of the inherited property made by the decision of prior instance were significantly disadvantageous to the appellant; considering that this was caused by the fact that the deposit/savings claims were not subject to the division of the inherited property; and, as a measure to resolve this issue, changing precedents to exclude ordinary savings claims and ordinary deposit claims from the “divisible claims” as referred to in the Judgment of the First Petty Bench of the Supreme Court, April 8, 1954, 1952 (O) No. 1119, Minshu Vol. 8, No. 4, p. 819.

However, I must say that the position of the majority opinion erred in setting the problem and will not only fail to lead to a fundamental resolution of the problem but will also create new problems. Even if deposit/savings claims are understood as quasi-jointly owned claims, the possibility still remains that an unfair outcome that is similar to that in the present case may be suffered with respect to other types of claims. For instance, a question arises if it is reasonable to draw a conclusion different from that of the present case in a case where the decedent had a damages claim awarded by final judgment against the national government under the State Redress Act.

2. The problem lies with the current practice where divisible claims that are automatically divided according to the joint heirs’ shares in inheritance upon the commencement of inheritance are not taken into account in any way in a division of the inherited property (hereinafter referred to as the “exclusion-from-division theory”). In contrast, I am of the opinion that a view should be adopted that the joint heirs’ respective specific shares in inheritance should be calculated based on all inherited property, including divisible claims, at the time of commencement of inheritance, with the remaining inherited property being divided according to the amounts obtained by deducting from the amounts of such shares the respective amounts of divisible claims automatically divided between and obtained by the joint heirs, followed by adjusting any excess or deficiency by compensatory money (hereinafter referred to as the “inclusion-during-division theory”). The reason for this is as follows.

A division of the inherited property is intended to comprehensively appraise the value of the entire inherited property and to divide it in proportion to the joint heirs’ specific shares in inheritance in accordance with the criteria set forth in Article 906 of the Civil Code (see Supreme Court, 1972 (O) No. 121, Judgment of the Second Petty Bench of November 7, 1975, Minshu Vol. 29, No. 10, p. 1525), and there is no question that the “entire inherited property” in this context refers to blanket rights and duties attached to the property of the decedent at the time of commencement of inheritance (Article 896 of the same act). Therefore, a division of the inherited property means dividing blanket rights and duties attached to the property of the decedent at the time of commencement of inheritance between the joint heirs according to their specific shares in inheritance. In contrast, the exclusion-from-division theory understands a division of the inherited property as a procedure for dissolving the co-ownership of the individual inherited assets constituting the inherited property (Article 898 of the same act), and excludes divisible claims from a division of the inherited property by understanding that no co-ownership occurs with respect to divisible claims. However, since the procedure for dissolving the co-ownership of individual inherited assets is merely a procedure for achieving a division of the inherited property through which the entire inherited property is distributed to the joint heirs according to their respective shares in inheritance, the exclusion-from-division theory, which hinders the appropriate achievement of a division of the inherited property in this sense, cannot be adopted. The inclusion-during-division theory is instead considered appropriate.

According to the exclusion-from-division theory, while any deposits and savings remaining at the time of division of the inherited property can be distributed to the joint heirs according to their specific shares in inheritance, if any one of the joint heirs withdraws any deposit or savings without permission before the decedent’s decease, no distribution according to the joint heirs’ specific shares in inheritance can be made with respect to the claim for damages or unjust enrichment obtained by the decedent. By contrast, the inclusion-during-division theory allows, even in the latter case, distribution of deposits and savings according to the joint heirs’ specific shares in inheritance, which makes this theory superior to the other in terms of the equitability of the outcome. In addition, while some decedents who leave no will are likely to expect that his/her estate will be divided according to the applicable legal provisions, it is natural to consider that an ordinary decedent who is not a legal expert expected that there would be no difference in the outcome depending on whether or not some claims constituting his/her estate are divisible claims. Therefore, the exclusion-from-division theory can be regarded as producing an outcome that is contrary to the expectations of the decedent.

Adoption of the inclusion-during-division theory may increase the number of cases for adjudication for domestic relations, resulting in an increase in the burden on family courts. However, I believe that there will be no such significant increase in the burden on family courts that would hinder the appropriate handling of their affairs, considering that it is quite extensively seen in family courts’ practice that divisible claims are subject to a division of the inherited property with the consent of the parties, and considering also that any extreme difference in conclusion rarely occurs between the inclusion-during-division theory and the exclusion-from-division theory, with the gap between the joint heirs’ specific shares and legal shares in inheritance being expected to be small in many cases.

Therefore, I believe that it is reasonable to quash the decision of prior instance, which is based on the exclusion-from-division theory, and to remand this case to the court of prior instance in order to have it further and fully hear the case based on the inclusion-during-division theory.

3. Finally, I would like to point out that I cannot agree with the conclusion that regards ordinary savings claims and ordinary deposit claims as quasi-jointly owned claims by changing precedents that regard them as divisible claims, on such grounds as that regarding ordinary savings claims and ordinary deposit claims as quasi-jointly owned claims will not only fail to lead to a fundamental resolution of the problem but will also create new unfairness, that it may also create a situation such as that where any joint heirs who depended upon the decedent before his/her decease are not allowed to withdraw deposits and savings and face difficulties making a living or where the joint heirs face difficulties paying hospital charges for the decedent or inheritance tax, and that there have been no obvious changes in circumstances that would require a change in precedents.
Justice TERADA Itsuro

Justice SAKURAI Ryuko

Justice OKABE Kiyoko

Justice OTANI Takehiko

Justice OHASHI Masaharu

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice KIUCHI Michiyoshi

Justice YAMAMOTO Tsuneyuki

Justice YAMASAKI Toshimitsu

Justice IKEGAMI Masayuki

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice KANNO Hiroyuki
(This translation is provisional and subject to revision.)