Cousin Had Challenged His Capacity to Make a Will Shortly Before 2014 Death

After a two-year legal battle, the Oberlandesgericht in Munich has upheld the dismissal of Uta Werner’s challenge to the will made by Cornelius Gurlitt in 2014 that designated the Kunstmuseum Bern as his heir, including the bequest of his controversial painting collection. Less than six months after it was revealed in November 2013 that the Bavarian authorities had seized 1,280 objects from his Schwabing home in Munich, Gurlitt wrote a will that designated that his entire collection would go to the Swiss museum. Barring some extraordinary appeal, the bequest will now be final and the collection will go to Switzerland. While lifting considerable uncertainty about the fate of the collection as a whole, this development does not address the lack of clarity about the process by which the objects that are suspected of having been looted by the Nazis will be examined or returned.

The background of the Gurlitt case is lengthy and will not be repeated here in the interest of brevity, but our coverage can be found here. As we have discussed before, the circumstances of Gurlitt’s will were nothing if not unusual. After international media scrutiny for which he was clearly ill-equipped, Gurlitt reached an agreement with Bavaria under which the then-recently appointed Task Force would continue to review the collection for provenance and looting concerns by virtue of his father Hildebrand Gurlitt's status as a Nazi-approved dealer of so-called "degenerate art" and other activities in occupied France, in particular. Less than a month after that agreement, Gurlitt died, and it was revealed that he had left his property to the Bern museum. After reviewing the circumstances, Gurlitt’s cousin Uta Werner challenged the will, arguing that he was not of sufficiently sound mind to do so.

We have noted before that the facts on their face would seem to have been a strong case under Anglo-American law, but of course that is a theoretical question, Gurlitt was German. The court posted its reasoning online, which to date is avalable only in German. The salient points of the opinion are as follows:

  • 2229 Abs. 1 of the Bürgerliches Gesetzbuch (BGB) states that anyone older than sixteen is presumptively capable to make a bequest.
  • Only when the person is not capable of understanding the the meaning of the bequest as a result of mental infirmity or serious disturbance. This is an exception and the will must be upheld until the court determines the standard has been satisfied.
  • After reviewing the written record and considering expert opinions, the court was not satisfied that this presumption had been overcome. The court did acknowledge that there were reasonable indications that Gurlitt may have had some delusion. But that stops short of the dementia that the court felt it would be necessary to establish to ignore the will.

The Sueddeutsche Zeitung coverage by Jörg Häntzschel and Catrin Lorch remains the most comprehensive of the story (in German). An Apollo article from last year article from last year provides useful insight into the Bern museum’s thinking on the matter, interviewing Matthias Frehner, the museum’s director. David Lewis, co-founder of the Commission for Looted Art in Europe (CLAE) offers a helpful list of the problems as well.

Now comes the hard part. The Task Force has been in limbo since it formally ended a year ago, with the status of further examination unclear. The museum has pledged to continue the the review for restitution of appropriate objects, but that standard will be difficult to understand. Most of even those objects that the Task Force has designated for return have not been, and the category of questionable work numbers in the hundreds. The time line in which those works will be adjudicated is unknown.

To the extent it takes the matter of of the hands of Bavarian authorities, so much the better. 2016 has been a year in which Bavaria’s failures in this regard have been shown to be conclusive (thanks to the work of the CLAE and others, including my clients), even while happily accepting a restitution recently of a tapestry from the United States. Turnabout is not fair play, it seems. In addtion, the spotlight is now squarely on the Swiss museum. Questions like whether “flight goods”—objects not directly looted but left behind in flight because of persecution—have prompted fierce debates in Switzerland and Germany as to whether they should be returned. Those arguments will only now get underway in earnest.