The New York Times reported yesterday that the transfer of the Gurlitt collection to the Kunstmuseum Bern is still mired in legal issues. Apparently within hours of the museum accepting the gift in November, Gurlitt’s cousin, Uta Werner, filed a motion with a German court on behalf of herself and several other family members to have the will overturned. It appears that she is basing her argument on a psychological report which found Gurlitt incompetent.
This means that any claims by heirs of Holocaust victims must be put on hold. If the Kunstmuseum Bern restored the paintings to these heirs, and the will was overturned, this would mean that the museum never held legal title and therefore were in no position to return the paintings. The museum had already pledged to work with heirs to return stolen art, and the museum community would hold the Kunstmuseum Bern to that promise. We do not know what Uta Werner and her co-plaintiffs will do. It is possible they might decide to stall and litigate each and every claim…or they might not. But time is on their side.
The 70th anniversary of the liberation of Auschwitz was just last month. The survivors that attended the ceremonies were children when they were imprisoned and liberated. Memories fade. Evidence was lost decades ago. The last survivors won’t be with us for much longer. I do not know what the replevin laws are in Germany, and what sort of statutes of limitations might be in play. While the decision whether or not to overturn the will might drag on for months, those months might mean the difference between life and death for a survivor making a claim. What a full circle it would be–survivor who was liberated 70 years ago not only lived to return but in the same year also had confiscated property returned–true defiance against everything that was evil.
In the same vein, I do not know what are the legal standards in Germany for competence in forming a will. In the United States, for a will to be valid it must meet three requirements: the person making the will must be over 18, he must be competent, and it must be witnessed. Overturning a will based on failure of one of these factors is very difficult for a plaintiff to prove. The most common one challenged is obviously the competence factor, but legal competence in will-making has a very low threshold. And there is a difference between legal competence in will-making and a psychological determination that a person is incompetent. Basically, to be competent, a person has to be able to identify their property and identify those the property should go to upon the person’s death. Those suffering from Alzheimer’s and dementia have met this standard. Further, a person suffering from serious mental issues can be found to be competent if the court finds that the will was created in a moment of lucidity.
In the shadow of the 70th anniversary of the liberation of Aschwitz, the debate over the artwork of victims continues….