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Probate Law, a Will Bequest, and The Woman in Gold

When drafting your will, make sure you are making a “will bequest,” not a mere “request.”

The Woman in Gold: A Will Bequest?Adele Bloch-Bauer sat for Gustav Klimt in two portraits (one in 1907, the other in 1912) and was the only model painted twice by Klimt. When Adele died in 1925, she and her husband, Ferdinand, owned six Klimt paintings: the two portraits and four additional landscapes.

When Nazi Germany annexed Austria during the 1938 Anschluss,  Ferdinand fled to Prague and then Zürich. Soldiers seized the 1907 portrait, originally titled Adele Bloch-Bauer I, from his home. The Nazis removed the original name, calling it The Woman in Gold so that it could be displayed without referring to a prominent Jewish family. In 1941, the state sold the painting along with four others to the Belvedere Gallery.

Battle of two wills

In her 1923 will, Adele had asked Ferdinand to consider donating the Klimt paintings to the Austrian State Gallery, housed in the Belvedere palace, upon his death. Specifically she wrote:

Meine 2 Porträts und 4 Landschaften von Gustav Klimt, bitte ich meinen Ehegatten nach seinem Tode der österr. Staats-Galerie in Wien zu hinterlassen”  (“I ask my husband to bequeath my 2 portraits and the 4 landscapes by Gustav Klimt to the Austrian State Gallery in Vienna after his death”).

Ferdinand signed a statement acknowledging Adele’s wish in her last will and donated one of the paintings to the Belvedere Gallery in 1936.

In November 1945, Ferdinand died in Zürich. In his 1945 will, he designated his nephew and nieces as the heirs of his estate, which included the Klimt paintings. One of his nieces was Maria Altmann, a 1938 Jewish refugee from Austria who settled in the United States.

At the heart of the battle was whether Adele’s request should or should not be considered legally binding upon Ferdinand, who was actually the owner of the paintings.

Restitution of artworks

In 1998, Austria passed a law opening the archives of the Ministry of Culture for the first time, thus introducing greater transparency into the process of dealing with the issue of restitution of artworks looted during the Nazi period. An Austrian investigative journalist discovered that, contrary to what had been generally assumed, Ferdinand had not donated the paintings to the state museum.

Turning to the law

Altmann asked the Austrian government for the Klimt landscapes belonging to her family; she offered to let Austria keep the two portraits. Unfortunately, the government did not treat her seriously. In 1999, she sought to sue Austria in that country. The filing fees in Austria, based on the value of the paintings, was prohibitively expensive, and the case was dropped.

The following year, Altmann filed a lawsuit against Austria in federal court in the United States. In 2004, the U.S. Supreme Court ruled that Austria was not immune from such a lawsuit. After this decision, Altmann and Austria agreed to binding arbitration by a panel of three Austrian judges.

Austria’s position was that Adele had made a will bequest, that is, property given by will. Altmann argued that Adele’s will included a request, that is, an act of asking formally for something to happen. To support her assertion, Altmann referred to a section of Adele’s will that stated

In Section III, Paragraphs 2 and 3, the testatrix makes various requests to her husband; he promises to faithfully fulfill said requests, though they do not have the binding nature of a testamentary disposition. It is important to note that the Klimt paintings are not the property of the testatrix, but rather of the testatrix’s widower.”

On January 16, 2006, the arbitration panel ruled that Austria was legally required to return the art to Altmann and the other family heirs.

Portrait of Adele Bloch-Bauer II: A Will BequestThe aftermath

The loss of the paintings was regarded in Austria as a loss of national treasure, and opposition parties criticized the Austrian government for its failure to deal with Altmann in 1998.

The five paintings earned more than $327 million, with The Woman in Gold selling for $135 million to Ronald Lauder for his Neue Galerie in New York City, at the time a record price for a painting. The other portrait (see image at right) sold for $88 million to Oprah Winfrey.

Altmann died in 2011.

The film The Woman in Gold was released in 2015.

Other works relating to the Nazi looting of European artwork