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French Republic In the name of the people

Decision of the Court of Appeal of Paris, France on March 24th 2005 Michèle Vasarhelvi (formerly Taburno) and Mr André Vasarhelvi vs. Pierre Vasarhelvi

2nd Chambre – section B DECISION OF MARCH 24, 2005 (n° 135) Inscription number on the general register : 04 / 19802 Deferred decision of the Court: decision of June 2, 2003 High Court of PARIS, France 2nd chamber 1st section RG n° 1998 / 1572

APPELANTS Mrs Michèle VASARHELYI formerly TABURNO c/o Mr ROJAS 910 S Michigan Avenue 60605 CHICAGO ILLINOIS UNITED STATES OF AMERICA represented by Maître Chantal BODIN-CASALIS, attorney at Court assisted by Maître Fabrice VAN CAUWELAERT, attorney at the Paris Bar, no D 997 substituted by Maître Jean-François MARCHI, attorney at the Paris Bar Mr André VASARHELYI 5 AVENUE Pierre Bossolette 92160 ANTONY, France represented by Maître Chantal BODIN-CASALIS, attorney at Court assisted by Maître Catherine COHEN, pleading for SELARL LYSIAS and substituted by Maître Yves BAUDELOT, attorney at the Paris Bar, no P 113

RESPONDENT Mr Pierre VASARHELYI 1175 route de l’Angesse 13100 LE THOLONET, France represented by SCP D’AURIAC –GUIZARD, Solicitors at Court assisted by Maître Barthélémy LACAN, attorney at the Paris Bar, no E 435, Maître Olivier KUHN-MASSOT, attorney at the Marseille Bar

COMPOSITION OF THE COURT : The case was debated on February 24, 2005, at the public hearing, before the Court composed of : Mrs Françoise KAMARA, the President, Mr Jean-Louis LAURENT-ATTHALIN, an assessor, Mrs Dominique DOS REIS, an assessor Who deliberated on it The Clerk during the debates: Ms Carole TREJAUT

DECISION :

Inter partes
Given publicly by Mrs Françoise KAMARA, the President, and by Ms Carole TREJAUT, the Clerk present when the decision was given.

Victor Vasarely, an artist painter and craftsman, died on March 15, 1997, at the age of 91, leaving :

- his eldest son, Mr André Vasarhelyi, a doctor,
- his youngest son, Jean-Pierre Vasarhelyi, called Yvaral, an artist,
- his grandson, Mr Pierre Vasarhelyi, from Jean-Pierre Vasarhelyi’s first marriage,
- his daughter-in-law, Mrs Michèle Vasarhelyi.

Under the terms of a testament dated April 11, 1993, Victor Vasarely gave his grandson, Pierre, all the available share and stipulated that the latter was the only one apt of ensuring the durability and continuation of his work of art within the Vasarely Foundation.

Exercising this testament, Mr Pierre Vasarhelyi had his father and uncle summoned to hand over the legacy.

It is under these conditions that, ruling on the report of Doctor Cousin, designated as an expert in the provisional decision of June 16, 1999, the High Court of Paris, France, in a decision of June 2, 2003 :

- validated Victor Vasarely’s will of April 11, 1993,
- ordered the issuance of the legacy to Mr Pierre Vasarhelyi,
- stated, in application with Article 1016 of the French Civil Code, that the costs of the issuance request would be at the charge of the estate without however there resulting a reduction of the legal reserve, the registration rights remaining due by the legatee,
- ordered that, at the suit, in these proceedings, of Mr Pierre Vasarhelyi, in the presence of Mr André Vasarhelyi and Mrs Michèle Vasarhelyi (Jean-Pierre Vasarhelyi having died on August 2, 2002, leaving his wife as executrix and his son Pierre), or those duly summoned, the accounting, liquidation and sharing operations of Victor Vasarely’s estate would be undertaken by the president of the interdepartmental chamber of Paris, France, entrusted with the faculty of delegation.
- rejected the requests based on Article 700 of the New French Code of Civil Procedure,
- ordered in solidum Mr André Vasarhelyi and Mrs Michèle Vasarhelyi to pay the costs.

Mrs Michèle Vasarhelyi pursued the nullification of this decision, requesting the Court to :

* state that Victor Vasarely was not sound of mind, in the sense of Article 901 of the French Civil Code, when writing the testament, supposedly dated April 11, 1993, of which Mr Pierre Vasarhelyi takes advantage,
* decide, moreover, that the date of April 11, 1993 does not correspond to anything and cannot have any signification nor any bearing,
* state, consequently, that Victor Vasarely’s testament falsely dated April 11, 1993 is in fact nil and void,
* subsidiarily, order the personal appearance of Mr Pierre Vasarhelyi under the conditions put forward by Article 184 and the following of the New French Code of Civil Procedure, so that the latter explain under what conditions the litigious testament was put into his hands,
* designate an expert in graphology to analyse Victor Vasarely’s writing and verify that it was written freely, thoughtfully, voluntarily and spontaneously or, on the contrary, the result of a dictation and pressure operated on the author against his will,
* in all hypotheses, order Mr Pierre Vasarhelyi to pay her the sum of 10,000 euros as damages for abusive procedure, on the grounds of Article 32-1 of the New French Code of Civil Procedure, besides the sum of 10,000 euros by application of Article 700 of the New French Code of Civil Procedure.

Mr André Vasarhelyi begs the Court to infirm the deferred decision, to state that Victor Vasarely was not sound of mind when writing the testament of April 11, 1993, state this testament nil, dismiss all Mr Pierre Vasarhelyi’s requests, subsidiarily, designate an expert with the mission of listening to the people who lived with Victor Vasarely, and in particular Mrs Michèle Vasarhelyi, Mr Bruno Allart and Mr Dubreuil, and give his opinion on the point of knowing whether, at the date of April 11, 1993, Victor Vasarely was sufficiently lucid to establish knowingly the testament of which Mr Pierre Vasarhelyi is taking advantage, designate an expert in graphology to analyse Victor Vasarely’s writing and order Mr Pierre Vasarhelyi to pay him the sum of 7,620 euros in virtue of Article 700 of the New French Code of Civil Procedure.

Mr Pierre Vasarhelyi requested the confirmation of the decision, the issuance of the legacy at the expense of the heirs, the opening of the accounting, liquidation and sharing operations of the marriage which existed between Claire Spinner, who died on November 27, 1990 and Victor Vasarely, and Victor Vasarely’s estate, the dismissal of the counter claims and the sentencing in solidum of the appellants to pay the sum of 7,620 euros to cover his unclaimable expenses.

This having been exposed,
THE COURT,

Considering, in the first place, that in law, a handwritten testament is not valid if it is not written in full, dated and signed by the hand of the testator;

That, in this particular case, in this appeal and for the first time since the introduction of the present instance in January 1998, Mrs Michèle Vasarhelyi and Mr André Vasarhelyi invoke the falseness of the date of April 11, 1993 on the litigious testament;

That, nevertheless, the proof of the falseness of the date stated in a testament has to find its principle and its root either in the other statements of the deed, or in the state of the latter’s material, and that failing these elements, extrinsic facts and circumstances cannot be invoked;

That, in this particular case, the appellants have in no way established that the testament contains remarks susceptible of contradicting the reality of its date nor that its material state establishes the falseness of the latter, the remarks of the deed being coherent and compatible with its date, and its material aspect appearing intact;

That, from that moment, it can only be retained that the testament in question was established on April 11, 1993;

Considering, in the second place, that in virtue of Article 901 of the French Civil Code, to make a donation inter vivos or a testament, one must be sound in mind;
That the responsibility of proving insanity of the mind is incumbent on the applicant requesting the annulment of the testament;

Considering, indeed, that Doctor Cousin, the expert designated by the first judges, concluded that the existence of mental problems with Victor Vasarely at the considered date is not proven;

That, after having obtained the medical information necessary for accomplishing his mission and having specified that, apart from very contradictory certificates, he had not found any exterior element proving the deterioration of the subject (ill-considered spending, maladjusted behaviour, abnormal behaviour) and that all the witnesses considered him to be a suggestible person, that is to say easily influenced and gifted with an almost pathological prodigality, the legal expert did not have to question the whole entourage of the painter, contrarily to what the appellants claim;

That, at the term of his investigations and prior to synthesising the medical elements communicated, in particular from Doctor Frémont, an psychiatric expert who had examined Victor Vasarely in January 1994 at the request of the judge for tutelage, who specified that the evolution of Victor Vasarely’s pathology was generally progressive, that it was difficult for him to say anything about the date of April 11, 1993 as he had not examined the patient at that time, but that it was highly likely that a part of the problem was already present, taking into account the generally slow evolution of the patient’s state at that age, Doctor Cousin remarked that :

- Victor Vasarely presented the beginnings of intellectual deterioration during the year 1990,
- this deterioration had been extremely fluctuant with periods of confusion and deterioration, of a variable length, largely influenced by the somatic and affective events touching the subject, that is his wife’s death on November 27, 1990, the legal battles both vis-à-vis the foundation and Mr Debbasch’s intrigues, as well as intercurrent somatic infections, in particular lung infections, and a fracture of the neck of the femur on November 5, 1992,
- if all the doctors having known Victor Vasarely agreed to state Victor Vasarely sound in mind until the end of 1990 and have him made a major incapable person at the beginning of 1994, their opinion diverges as to the precise date of the aggravation of deteriorating symptoms during 1993, doctors who met and knew him at that time were the general practitioners, Doctors Auzias and Bled, the former noted intellectual troubles in 1993;

Considering that Doctor Jullier, appointed by the judge to examine Victor Vasarely in order to determine whether he was conscious of the complaints he had lodged in October 1992, January 1993 and February 1994 against Charles Debbasch and the others, in particular for the misappropriation of works of art to the prejudice of the Vasarely Foundation, met the decedent in the month of March 1995 and noted that the latter did not apparently present any notable language destruction, having kept a certain number of automatisms, that he was still able to adapt to certain real situations within stable and familiar surroundings, that nevertheless he suffered from memory problems with a tendency of forgetting little by little, he could be coherent about certain facts: “I have a son, André, who is a doctor and Jean-Pierre who does the same as me. They are both very nice …. But my son Jean-Pierre will not forgive me for having taken his place in the higher realms of the painting field …”;

That, if this expert estimates that it seems that it could be considered that Victor Vasarely’s psychic functioning mode had particularly deteriorated as from the month of November 1992, the troubles having started in 1990 by the first signs of dementia evolution with, from November 1992, the constitution of a more characterised state of this type, he does not conclude in a permanent state of mental insanity at that period nor the existence of mental problems on April 11, 1993;

Considering that, in the “Gendarmerie”’s minutes drawn up on July 15, 2003, it is noted that Victor Vasarely was considerably diminished psychically probably because of his age, that he had obvious memory problems, that he needed someone with him constantly and that he was not visibly in a state of managing his artistic patrimony himself; that these findings in themselves do not establish the existence of the testator’s insane mental state when he wrote the litigious testament;

Considering that, from all these elements it results that, if Victor Vasarely had memory problems at the beginning of 1993 as well as episodes of intellectual confusion and disorientation, it is not proven that a state of mental insanity would then have been usual or that it would have been present on April 11, 1993, being superabundantly observed that, if Victor Vasarely’s mental problems had been permanent, Mrs Michèle Vasarhelyi – the above Gendarmerie’s minutes mention that at the death of Claire Vasarely, she seemed to have taken up the management of the painter’s affairs, that she laid off all the personnel present at the death of the painter’s wife and that she received in her Parisian office telephone calls corresponding to the painter’s number in the directory at the Annet-sur-Marne address, tried hard to place her father-in-law under a measure of protection, whereas the latter only benefited from such a measure in the month of March 1994, after a legal safeguarding measure of November 20, 1990, renewed on January 20, 1991, at the initiative of Doctor Auzias, his general practitioner, which was followed by an improvement in his state;

Considering that the proof of pressure exercised by Mr Pierre Vasarhelyi on his grandfather leading him to write the will in his favour has not been proven with the help of the graphological study, on an amiable basis nor inter partes, on July 24, 2002 at the request of Mrs Michèle Vasarhelyi by Mrs Rateau, who only indicated that Victor Vasarely’s neurological problems having started in 1990 had direct consequences on the writing, that the trembling, jerking, fragmenting and the feeling of panic became more pronounced in the case of pressure and threat, and that she had noticed that certain documents, written by Victor Vasarely in November 1990, February 1991, July 1991, and the testament in question reveal a strong accentuation of the attacks on the general balance of the writing : pressure, quality of the line, continuity, rhythm, skipping forms, graphic ease, and that, without identifying the author of the possible pressures, and above all that the appellant assert that Mr Pierre Vasarhelyi was not present at Annet-sur-Marne on April 11, 1993, Easter day;

Considering the fact that Victor Vasarely could have known that the available share was inexistent, as, on July 29, 1991, he had revoked any donation to the Vasarely Foundation exceeding the available share, the fact that the litigious testament was handed on February 6, 1996 to a Solicitor in Marseille, France and not, as of 1993 within the documents of Maître Dubreuil, a friend and the decedent’s usual Solicitor, who received Victor Vasarely’s previous testament on July 29, 1991 under which terms he had decided in particular that his assets would be shared in half between his sons and instituted his son Jean-Pierre the universal legatee of the moral right attached to his work, and the fact that the decedent had said several time to the latter that he would share his assets in half between his sons, is not sufficient to establish the falseness of the testament nor the insanity of the testator who gave the said share to Mr Pierre Vasarhelyi, such a thing being susceptible of translating Victor Vasarely’s affection for his grandson and mark his wish to draw conclusions of the observation made to Doctor Lullier, in which his son Jean-Pierre (the father of Pierre) would not forgive him having “taken his place in the higher realms of the painting field”;

Considering that, if Victor Vasarely had written to his son Jean-Pierre, in 1989 and 1990, that Pierre was always asking him for money, never had enough, did nothing at the Vasarely Foundation and had taken paintings with no authorisation that his father had made him take back, Victor Vasarely also wrote in November 1990, February 1991 and November 1992, that Pierre worked with passion and devotion for the Vasarely Foundation, that he was essential at the head of the foundation and that he himself wanted his grandson Pierre to continue defending his works of art within the Vasarely Foundation and that, in several year, he would become the director, it being revealed that Mrs Rateau’s report does not prove that these handwritten letters were dictated by Mr Pierre Vasarhelyi to his grandfather;

Considering that, in a written document of September 10, 1993, Victor Vasarely confirmed the wish expressed in his testament of April 11, 1993 relative to the continuation of his work in designating his grandson Pierre to represent him with Mr Cerelin, the administrator, in order to assist him within the framework of the management of the Vasarely Foundation;
That it is recalled that he had already written, in the same way on November 28, 1990, that he wished that his “only son (grandson) Pierre Vasarely” (sic) pursued the defence of his work within the Vasarely Foundation and that, in several years, he would become the director ;

Considering again, that the validity or authenticity of the hand-written testament is not conditioned by its handing-over to the legatee the same day as its writing, so that it is ineffectual to highlight that Mr Pierre Vasarhelyi was not near his grandfather on the said date of April 11, 1993;

Considering finally that it has not been proven that there was not remaining on the property of Annet-sur-Marne in the month of April 1993 a sheet of headed paper on which the litigious deed was written;

Considering that, consequently, without it being necessary to order the personal appearance of the parties or a new examining measure, and without there being grounds to invite the parties into more detail in their argumentations, the deferred decision shall be confirmed, as it has been observed that no legal clauses or provisions of the will enable to put to the charge of the heirs alone the expense of the issuance of the legacy to Mr Pierre Vasarhelyi;

Considering that the marriage community which had existed between Victor Vasarely and his wife, Claire Spinner, had been liquidated, following the latter’s death, by a solicitor’s deed of sharing established on July 20, 1991; that there are therefore no grounds to order the opening of the accounting, liquidation and sharing operations of this marriage community;

Considering that the procedure engaged rightfully by Mr Pierre Vasarhelyi cannot be qualified as abusive;

Considering that neither the equity or the economic situation of the parties justifies the application of Article 700 of the New French Code of Civil Procedure;

ON THESE GROUNDS

Confirms the deferred decision;

Dismisses all other requests;

Put at the charge of Mrs Michèle Vasarhelyi and Mr André Vasarhelyi in solidum the cost of the appeal, which can be recovered in conformity with Article 699 of the New French Code of Civil Procedure.