PREAMBLE

The painter, Victor VASARHELYI, called VASARELY, died on March 15, 1997 at the age of 91.

He left, after his death, for his estate, his eldest son André VASARHELYI, his youngest son Jean-Pierre VASARHELYI, the wife of the latter Michèle TABURNO, and his grandson Pierre VASARHELYI, who is the son of Jean-Pierre VASARHELYI.
Pierre VASARHELYI puts forward a testament hand-written by his grand-father dated April 11, 1993 handed in amongst the documents of Maître DECORPS, a Solicitor in Marseille, France, on June 20, 1997 under the terms of which Victor VASARHELYI leaves his grandson “all the available share”.

In view of the provisional decision on the merits given on June 16, 1999 by the Tribunal in session, in which reference is expressly made in the preamble designating Mr COUSIN in the capacity of expert in order to, and in particular, state if, in his opinion, Victor VASARHELYI was sound of mind at the moment the testament was written on April 11, 1993.

The expert’s report was handed in on May 21, 2001.

In view of Mr Pierre VASARHELYI’s last briefs notified on November 26, 2002, he requests that the Tribunal :

- state that the testament on April 11, 1993 is valid,
- give him its full rights and, consequently, order the issuance of his legacy at the heirs’ charge,
- order the liquidation and the share of Victor VASARELY’s estate,
- reject the defendants’ counter requests;
- order the temporary fulfilment of the forthcoming decision, notwithstanding the appeal and without guarantee;
- order in solidum the two defendants to pay the applicant the sum of 7,620 euros by way of Article 700 of the New French Code of Civil Procedure;
- order in solidum the two defendants to pay all costs of the instance.

In support of his claims,
Pierre VASARHELYI exposes that the expert, Mr COUSIN, after a meticulous, methodical and loyal analyse of Victor VASARELY’s state of health, rightly concludes that there is no reason to doubt the civil capacity of the latter at the date of April 11, 1993, which corresponds to that of the hand-written testament naming Pierre VASARHELYI as legatee of the available share; that furthermore it is established that his grand-father had a lot of affection for and confidence in him and hoped to see him perpetuate his work, in particular within the framework of the VASARELY Foundation; that the variation of Victor VASARELY’s writing in the testament of April 11, 1993 is not established; that in all hypotheses, it is not susceptible of establishing a serious deterioration of Victor VASARELY’s mental faculties; that, finally, the beginning of Victor VASARELY’s guardianship, dated March 29, 1994, almost a year after the writing of the litigious testament, does not constitute any proof of the latter’s not being sound of mind at the date of the testament.

In view of the briefs of Mr André VASARHELYI and Mrs Michèle TABURNO, acting as executrix and co-heir of Jean-Pierre VASARHELYI, who died on August 2, 2002, they request that the Tribunal :

- state that Victor VASARELY was not sound in mind when writing the testament on April 11, 1993;
- state that consequently Victor VASARELY’s testament dated April 11, 1993 is nil and void;
- reject all Mr Pierre VASARHELYI’s requests.

Subsidiarily,

- designate a new expert whose mission would be to listen to the people who had lived with Victor VASARELY and in particular Mrs Michèle TABURNO, Mr Bruno ALLART and Maître Pierre DUBREUIL, and give his opinion as to whether at the date of April 11, 1993, Victor VASARELY was sufficiently lucid to establish knowingly the testament which Pierre VASARHELYI today puts forward;
- designate an expert in graphology to analyse Pierre VASARHELYI’s writing;
- order Mr Pierre VASARHELYI to pay Messrs André and Jean-Pierre VASARHELYI the sum of 7,620 euros by way of Article 700 of the New French Code of Civil Procedure;
- order Mr Pierre VASARHELYI to pay all costs.

In support of their claims, they put forward that Victor VASARELY, who had suffered from Alzheimer’s disease since 1990, no longer had any cognitive faculties since the month of November 1992, that Dr COUSIN’s report could not be accepted since Dr COUSIN had not questioned the people living with Victor VASARELY, that the report is in contradiction with the other doctors’ conclusions and that the report itself is contradictory.

They also maintain that the conditions, in which the testament was established, confirm that on April 11, 1993, Victor VASARELY was no longer free of will; that, thus, the testament was received by a Solicitor, other than the one Victor VASARELY usually turned to, that the testament leaves an available share which Victor VASARELY knew was nil, that his grandson had greatly disappointed Victor VASARELY; that the testament’s object to disinherit Victor VASARELY’ two sons for whom the former had an equal affection, and that finally, the testament was written under the pressure of Pierre VASARHELYI.

GROUNDS

- On the nullity of the testament of April 11, 1993.

It results from the clauses of Article 901 of the French Civil Code that “to make an inter vivos gift or a will one must be sound of mind”, and the clauses of Article 489 paragraph 1 of the same Code that the proof of insanity is for the applicant to contest, therefore he who lightens the insanity.

In this particular case, while Mr André VASARHELYI and Mrs Michèle TABURNO request the nullity of Victor VASARELY’s testament dated April 11, 1993 for insanity, they have to prove that Victor VASARELY was not sound of mind at the time of the testament, any mode of proof being admissible.

Mr André VASARHELYI and Mrs Michèle TABURNO enumerate a whole series of elements to try and show that Victor VASARELY was not sound of mind in spite of the contrary report of Doctor COUSIN, nominated as expert by the Tribunal.

It emerges from Doctor COUSIN’s report that he went about this operation in a meticulous and coherent way; that indeed, he examined with precision the different reports of the doctors who knew about Victor VASARELY’s state of health since the latter had started to deteriorate intellectually after his wife’s death on November 27, 1990; that he examined all the documents communicated to him by the parties and that he also interviewed Pierre, Jean-Pierre and André VASARHELYI.

Consequently, the Tribunal shall retain the particularly detailed briefs of this report which indicate that :

- Victor VASARHELYI showed the beginning of an intellectual deterioration during 1990; that this deterioration was extremely fluctuant with periods of confusion and disorientation of a variable length, largely influenced by somatic or affective events which could touch a person born in 1906, the legal battles vis-à-vis the Foundation and the intrigues of Mr DEBBASCH, the intercurrent somatic infections particularly lung infection and the fracturing of the neck of the femur on November 5, 1992;

- the practitioners who knew him all agree to state him sound of mind until the end of 1990 and make him incapable by the beginning of 1993 (Dr FREMONT’s report), that their opinions diverge as to the precise date of the aggravation of the deteriorative symptoms during 1993;

- the doctors who met and knew him at that time (during 1993) were his specialists, Doctors AUZIAS and BLED; that the first one only noticed intellectual perturbations as from the end of 1993; that, furthermore, apart from the very contradictory certificates supplied by both parties, no exterior element of a behavioural type proves Victor VASARELY’s deterioration :
• no unconsidered spending or incoherent management,
• no unsuitable conduct or scandal,
• no abnormal or dangerous behaviour for himself or others;

- on the other hand, all the witnesses had always considered him as a person with a suggestible character, that is to say easily influenced, gifted with an almost pathological prodigality, which is not sufficient to make a person civilly incapable;

- no element can put a doubt on Mr Victor VASARHELYI’s civil capacity when he handwrote the testament on April 11, 1993.

The fact that Doctor COUSIN did not question in an exhaustive way the people around Victor VASARELY is not in itself a valid reason to have a second expertise ordered on his state of health; this request shall therefore be dismissed by the Tribunal.

The Tribunal does not draw any conclusions on the state of Victor VASARELY’s mental faculties, at the moment the litigious testament was written, the circumstance in which this testament was received by a different Solicitor than the one Victor VASARELY usually used nor the circumstance in which he legated an available share which he knew did not exist, even more so in this particular case, as this latter circumstance is proceeded by the defendants’ simple assertion.

As to the state of the relationship having existed between Victor VASARELY and his grandson, there results a number of documents handed into the debates on this subject, and, in particular, letters written by Victor VASARELY himself, that the latter showed himself to be particularly generous with his grandson giving him a number of works of art or sums of money during his visits and that if Victor VASARELY complains in his letters of “…. permanent demands from Petit-Pierre” [letter dated May 28, 1990 addressed by Victor VASARELY to his son Jean-Pierre VASARHELYI], they no less certify the attachment Victor VASARELY had for his grandson, attachment corroborated by the fact that Pierre VASARHELYI occupied different posts within the VASARELY Foundation with Victor VASARELY’s approval as certifies a letter dated October 23, 1992 from the latter in which terms he writes “that it has never been brought to my knowledge that you failed in your obligations. On the contrary, you work with passion and devotion for the Foundation, without ever drawing any personal benefit from your name, just as I have always ask of you”.

Finally, the variation of Victor VASARELY’s writing exposed by the defendants, and moreover not at all obvious, is not sufficient to show that the testator was not sound of mind.

A graphological expertise is not at all essential and the defendants’ request on this point shall therefore be rejected.

There are grounds to consider, in view of all the above mentioned elements, that if they establish that Victor VASARELY went through a certain weakening of the mind as from the end of 1990 due to age and sickness, they do not enable a characterisation of a state of insanity in Victor VASARELY on April 11, 1993 of a kind to annul the testament written at that date.

Consequently, the Tribunal validates the testament of April 11, 1993, orders the issuance of the legacy, orders the operations of accounting, liquidation and sharing of Victor VASARELY’s estate under the conditions of the present pronouncement, reject all the defendants’ requests.

As no emergency is characterised, there are no grounds to order temporary execution.

It seems equitable that the parties shall be in charge of their own unclaimable expenses and state there are no grounds for the application of Article 700 of the New French Code of Civil Procedure.

ON THESE GROUNDS
The TRIBUNAL,

Ruling publicly in an inter partes decision and in first resort;

Validates Victor VASARELY’s testament of April 11, 1993;

Orders the issuance of the legacy to Mr Pierre VASARHELYI;

States, in application with Article 1016 of the French Civil Code, that the costs of the issuance request are at the charge of the estate without nevertheless there resulting a reduction of the legal reserve, the registration rights remaining due by the legatee;

Orders, at the suit of Mr Pierre VASARHELYI in these proceedings, in the presence of Mr André VASARHELYI and Mrs Michèle VASARHELYI, and those duly summons, through the President of the Solicitors’ Interdepartmental Chamber of Paris, France, that the Tribunal appoint any member of their body with faculty of delegation and replace him if needs be, it shall be proceeded with the operations of accounting, liquidation and sharing of Victor VASARELY’s estate;

Designates the President of the High Court of Paris, France or such other magistrate appointed by him to draw up a report on the market value of the estate if there are grounds;

States that there are no grounds to order temporary execution;

Dismisses the requests of Article 700 of the New French Code of Civil Procedure;

Orders in solidum Mr André VASARHELYI and Mrs Michèle VASARHELYI to pay the costs of the instance to counsel following their demand in conformity with Article 699 of the New French Code of Civil Procedure.

Drawn up and decided in Paris, France, on June 2, 1993