The Heirs of the Artist Franz West win their lawsuit against the Private Foundation

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Franz West

The Heirs of the Artist Franz West win their lawsuit against the Private Foundation

Monday, 26 June, 2017

The heirs of the artist Franz West won their court proceedings against the Foundation of Franz West in front of the Regional Court for Civil Matters in Vienna, Austria. The heirs and family of Franz West were represented by the Austrian law firm Kerres | Partners.

After a long legal dispute between the heirs of Franz West and the Private Foundation established by the late Franz West, the Regional Court for Civil Matters in Vienna has now issued a judgment in favour of the family of Franz West. In this proceeding against the Foundation of Franz West the family of Franz West was represented by the Vienna based law firm Kerres | Partners. The judgement is not yet legally binding, since the Private Foundation Franz West could file an appeal against the now rendered court decision.

Franz West is known as one of the world's most famous contemporary artists and has been internationally known for his sculptures and the so-called passages. Franz West died on July 25, 2012 after a long illness in Vienna. A few days before his death, Franz West established the Private Foundation of Franz West. The artist signed the documents in the hospital bed only a few days before his death under the influence of an American gallery. At the same time, Franz West transferred a large part of his artworks with a legally questionable transaction to the newly established Private Foundation. With this transaction, the Private Foundation Franz West was supposed to receive artworks of Franz West with an estimated value of several million Euro, thereby completely ignoring an earlier drafted last will and the heirs’ legal rights to receiving a compulsory portion of the heritage under Austrian law.

The artist Franz West left a wife and two minor children. Before the commencement of the proceedings in front of the Regional Court for Civil Matters in Vienna, the Court responsible for the heritage proceeding of Franz West appointed a curator for the estate of Franz West. This curator challenged the legally questionable transfer of the artworks of Franz West to the Private Foundation on behalf of the estate respectively the heirs of Franz West.

In separate court proceedings, the former members of the Executive Board of the Private Foundation of Franz West were dismissed from the Executive Board of the Foundation by a legally binding decision of the Austrian Supreme Court on the grounds of gross breach of duty (GZ 6 Ob 145/16s).

The legal validity of the transaction which took place at the hospital bed of Franz West on July 20, 2012 was also judged in parallel proceedings initiated by the association “Archiv Franz West” against the Private Foundation. In March 2016, the Austrian Supreme Court decided in these proceedings that the transaction of July 20, 2012 as a two-sided act did not become legally effective and thus must be regarded invalid (GZ 4 Ob 18/16z). Following this decision, the Regional Court for Civil Matters in Vienna has now decided that the transaction of July 20, 2012, signed in the hospital bed of Franz West, for the transfer of artworks with an estimated value of several million Euros to the foundation was invalid and thus legally ineffective. Therefore, the Private Foundation of Franz West never became the owner of the art works of Franz West.

Under Austrian law, the founding of a private foundation is a one-sided act of the founder. The founder can assign part or all of his property to a private foundation in the deed of foundation or in additional documents. However, once a private foundation is established, the founder can assign additional assets to such private foundation only in the form of a two-sided act. The Austrian Supreme Court has already stated in numerous decisions that such an assignment of the founder after the establishment of a private foundation is a two-sided act. Under Austrian law such a two-sided agreement must be accepted by the already established private foundation to become legally effective. The Private Foundation of Franz West, however, never accepted the assignment of artworks of Franz West on July 20, 2012. Due to this fact, the transaction never became legally effective and the alleged transaction is thus legally invalid.

Franz West was admitted to the General Hospital in Vienna in July 2012 after having been hospitalized multiple times in various other hospitals, weakened by hepatitis and hepatic encephalopathy. Hours before Franz West was admitted to a vital dialysis at the intensive care unit of General Hospital in Vienna, he signed the deed of foundation and the transaction to transfer the artworks to the newly established Private Foundation. A few days later, Franz West died and it is thus questionable whether he sufficiently understood the scope of his legal actions on July 20, 2012.

The fate of the two minor children of Franz West is especially harsh due to the fact that also their mother died in the year 2016. Tamar West was herself an internationally well-known artist. After the judgement of the Regional Court for Civil Matters in Vienna, the heirs will now take control over the estate of their father, the artist Franz West, under the supervision of their adoptive father and the guidance of the regional court for parental guardianship. 

Dr Christoph Kerres LLM (Georgetown)

For more legal information please contact Mr Kerres via tel +43 (1) 516 60 or e-mail office@kerres.at.

This information is provided as a public service to highlight matters of interest and does not imply an attorney-client relationship. It is not intended to constitute a full review of any subject matter, nor is it a substitute for obtaining specific legal advice from competent, independent counsel. If you would like to receive specific legal advice, please speak to your usual contact at KERRES I PARTNERS. All liability for damages arising from the information provided is explicitly excluded.