Rothko Revisited

There occurred in Sandy, London, Cardiff and Anglesey last month an important event for the visual arts which went largely unnoticed. That brief statement – rather like the ‘Who, When, Where, Why?’ newspaper adverts – hardly tells the story, but does provoke further enquiry. The full story is remarkable and worth telling.

Charles Tunnicliffe, R.A., ornithological artist and illustrator, made a will in 1969. He used the services of a bank which also agreed to act as the executors of his will after death. On their advice, he made 10 individual bequests of specific items or money, and left the remainder (his residuary estate) to his nephews and nieces, as a group, to share amongst themselves equally. One of the ten bequests was very important: it gave all his artworks to his sister ‘to dispose of in accordance with my wishes and instructions’.

Between 1969 and his death in 1979, Tunnicliffe made it absolutely clear to his close friends, colleagues, would-be biographers, documentary film-makers, and in his diaries and writings, that all his works unsold at his death should be kept together as a body and be given to the nation – with one bias towards Wales (his adopted and beloved homeland for most of his life) for its permanent home, and an alternative towards the R.A. Unfortunately, he may have made a legal mistake: he did not communicate any wishes or instructions in writing to his sister before he died. This gave his executors, the bank, a tricky problem: did this mean in law that the sister should be given his artistic estate for herself absolutely; could Tunnicliffe’s wishes be used to say in law that the works were really a charitable gift – to the nation – despite the possible legal defects; or was it so bad a legal bequest that the law would simply regard it as null and void, which would mean the artworks would then fall into his ‘residuary estate’ and go to his nephews and nieces? All highly technical and complex legal questions on which the bank, as executors, could have sought the advice, directions and even orders of the learned judges of the probate courts. This was not done. The bank decided that the bequest was in law null and void, and asked the nephews and nieces what they wanted to do about their new-found inheritance. It was agreed by them that all the works would be sold at auction and the proceeds of sale be divided equally amongst them.

All Charles Tunnicliffe’s bequeathed works were put up for auction at Christie’s (estimated value £400,000); after estate duty had been paid and Christie’s commission had been deducted, the nephews and nieces were likely to receive about £250,000 to be divided equally amongst them.

What, it might be asked, was the sister’s reaction? Unfortunately, not being a lawyer, being eighty-two years of age, and disinclined to embark upon a costly, lengthy and highly technical legal action (for the nation!), she felt it would be very difficult to object. What, then, of his friends, colleagues and the nation, all concerned that an artist’s real ‘will’ should be honoured? Lady Anglesey led a team of concerned friends and colleagues, together with Artlaw Services which gave its legal and administrative resources, to explore every possible avenue which might save the work for the nation. Lines of enquiry and questions doggedly pursued were numerous and often revealing; did the bank know who Tunnicliffe really was and the importance of the man as an artist and of his work; did they in any event make it absolutely clear to Tunnicliffe at the will-making that such a bequest must in law be followed by a clear written set of instructions to his sister; did they now accept that the bequest was genuinely intended to keep the work together for the nation: did they not feel bound, in those circumstances, to go back to the probate courts seeking guidance on the point; did the nephews and nieces not feel at least uneasy about taking the work and selling it when their uncle really intended the opposite: was the Attorney-General able to take legal action, on behalf of the public, to ensure that a gift to the nation was not irrevocably lost; did the friends and colleagues have any legal standing to get the matter into court: were Christie’s aware of the problem and could they be persuaded to postpone the sale; and, as a long-stop, could sufficient money be raised in time to buy the works, as a body; were the bank, as executors, aware that even a sale to the nation would create a definite capital tax advantage to the nephews and nieces.

The industry of the Save-the-Tunnicliffes team, coordinated and assisted by Artlaw, miraculously saved the day in time. On May 13th 1981, Anglesey Borough Council paid £400,000 of donated money and secured all Tunnicliffe’s works for the nation.

The significance of this tale is telling on many levels. In 1977 Art Monthly (AM No 5) published a pair of articles about the disgraceful circumstances surrounding the Rothko will-making and the subsequent unlawful breaches of trust by his so-called friends and colleagues. Strong views were expressed then about the need for all artists to take independent, expert legal and financial advice about what should happen to their work after death. In Rothko’s case, he took advice from those close to him who, he should have known, had a personal interest in the works left in the will; he trusted others to dispose of the work after his death according to written wishes that, with such other independent advices, he probably would never have expressed. His estate was ransacked, broken up and disposed of in a totally unlawful and disrespectful manner.

In Tunnicliffe’s case, there was no such powerful and improper influence exerted over him by those who recognised him as an established and prominent artist in his field: quite the reverse. There appears to have been a genuine lack of understanding of the artist and of the value and importance of his work and, therefore, of the need for careful and particular arrangements to be made for its future life after his death. Moreover, probably the most astonishing feature of all, there is the total absence of any provision in his will dealing with what must be an incredibly valuable copyright. Tunnicliffe was well-known within his own field, and had he sought advice from a source even loosely connected with the arts, there is no doubt that the will would have been drafted in a different way. Perhaps the key factor in all this is that Tunnicliffe was desperately unsure of the willingness of the nation – and that includes the Royal Academy – to accept his gift. So modest was he about the value of his work and so reluctant, therefore, to make serious enquiries during his lifetime about its resting place, that he simply sought basic general legal advice from his local bank. There, but for the grace of God . . .

The moral of this story depends on one’s own moral values, and indeed for some, there may be no moral at all. For those who do not care what happens to their work after death, the importance of making a will and seeking expert advice in order to do so will not be relevant. For those who give a damn, if only a little one, Tunnicliffe and Rothko must be revisited.

© Henry Lydiate 1981
(with grateful thanks to David Binding at Artlaw Services)



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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.