79.  Kremser's legal opinion, and therefore the committee's decision, was premised on the false assertion that Adele’s will gave the AUSTRIAN GALLERY an ownership interest in the paintings.  In coming to this conclusion, however, Kremser purposely misread Adele’s will and expressly disagreed with all of the leading Austrian legal experts who have written on this precise legal issue in the last several years (before the Bloch-Bauer case arose). First, Adele’s will merely expresses a request, but did not purport to obligate Ferdinand to make the donation.  Second, even if Adele did purport to obligate Ferdinand, the obligation would not have been enforceable because the paintings belonged to Ferdinand.

80.  In his 1994 article on “The Legacy of an Object Not Belonging to the Estate,” Prof. Rudolf Welser, Director of the Institute for Civil Law at the University of Vienna, concluded:

[The rule] that the testamentary disposition of an object not belonging to the estate is valid when the object belongs to an heir, does not apply in the case when the testator sets forth that the heir should upon his own death leave an object from his own separate property to a third party.

81.  Adele's will reads as follows:

I ask my husband after his death to leave my two portraits and the four landscapes of Gustav Klimt to the AUSTRIAN GALLERY.

82.  In the estate files is a declaration dated January 1926 from Gustav Bloch-Bauer (Ferdinand’s brother), the attorney for the estate, stating:

It should be noted that the referenced Klimt paintings are not the property of the deceased testatrix, but of her husband.

83. The Klimt paintings were not included as part of Adele’s estate during the course of the probate proceedings.

84. Thus, even if one were to conclude that Adele’s request purported to obligate her husband, it is clear that her request was not a legal bequest, but was at most a “Legacy of an Object Not Belonging to the Estate” asking her husband Ferdinand to dispose of his own property in a certain way after his death. This wish, according to Prof. Welser and the other Austrian legal scholars, is, and was, unenforceable (as it would be under American law).  To enforce such a request against the terms of Ferdinand’s last will would violate and circumvent the strict laws regarding testamentary dispositions.  And yet Kremser and Wran led the commission members to believe the exact opposite so that there would be no opposition to the government’s pre-ordained decision not to return the paintings to Ferdinand’s heirs.