Gurlitt Will Contest Won’t be Resolved Anytime Soon, Will Likely Delay Restitution

Art Law Report 7 February 2015
By Nicholas O'Donnell

Schweizer Radio und Fernsehen (SRF) reported yesterday that the challenge by Uta Werner to her cousin Cornelius Gurlitt’s will may extend late into this year.  Werner has petitioned the court in Munich to set aside the last will and testament that named the Kunstmuseum in Bern as Gurlitt’s sole heir and beneficiary of the 1,280 works of art found in his apartment in 2012, as well as those in Salzburg.  In November, the Kunstmuseum, the Bavarian government, and the German government announced to great fanfare but little analysis that the museum would accept the bequest and work with the Gurlitt Task Force to sort through objects with questionable provenance related to Hildebrand Gurlitt’s role as an approved dealer of “degenerate art” under the Nazis, and the concern that some of the objects may be Nazi-looted art.

This latest announcement has immediate ramifications.  Only one U.S. lawsuit has yet been filed over the Gurlitt collection, the claim by David Toren to his uncle from Breslau David Friedmann’s painting by Max Liebermann, Zwei Reiter am Strand.  Inexplicably, Germany chose to contest the lawsuit in the first instance, but after the November announcement the parties have filed a series of stipulations to extend deadlines for completing the briefing on Germany’s motion to dismiss, citing the agreement with the Bern museum and the imminence of the painting’s restitution.  Will Germany still follow through?  This is no small thing; if Germany returns the Liebermann, or the drawing taken from Henri Hinrichsen to his heir Martha Hinrichsen in the U.S., and Werner’s will challenge succeeds (meaning she becomes Gurlitt’s heir as a matter of law), then we have a real mess on our hands. 

Curiously, the will challenge continues to be treated largely as a delay that will inevitably be resolved.  I’m not so sure (a separate question, to be sure, from whether Germany should return the Hinrichsen and Toren paintings—it should).  The last several months of Gurlitt’s life are far more confusing, and his behavior was objectively strange enough, that a last minute bequest to a museum in another country with which he had no relationship whatsoever, is not a routine event.  Put it this way: I’ve seen will amendments set aside for far, far less unusual circumstances.

It also puts Germany’s victory lap on hold.  Given the way the whole case was handled from the beginning, which seems just fine.  Even without this development, there continues to be a deafening silence about the conclusions of the review of the collection, now underway for more than a year.

In the meantime, I’ve been reading a new book Die Bilder Sind Unter Uns—Das Geschäft mit der NS-Raubkunst und der Fall Gurlitt (The Pictures Are Under Us—Business in Nazi-Looted Art and the Gurlitt Case) by Stefan Koldehoff (a contributor to both the Frankfurter Allgemeine Zeitung and Die Zeit.  It’s a very thorough treatment of Hildebrand’s career and activities, the targeting of the art market and Jewish business people from day one of the Nazi regime, and the unaddressed and uncomfortable reality of the presence of that art in German museums today.  It’s a terrific read (in German, it must be noted).
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