The Van Gogh Museum in Amsterdam. The Andy Warhol Museum in Pittsburgh. There are numerous examples of museums around the world dedicated to honouring and preserving the work of a single artist. Art is often said to be in the eye of the beholder however. One person’s Jackson Pollock is another person’s mess a three-year-old drew on their wall. Does the “quality” of art matter when the court is determining whether a specific art collection should be granted charitable status?
Those of you who took up painting as a hobby during the pandemic could be wondering what to do with your masterpieces in the future. Could you, for example, leave a direction in your Will that your paintings as well as a sum of money is to be used to establish an art gallery in your honour? If so could this gallery become a registered charity and enjoy all the benefits that can come with that designation? Like all good legal questions the answer is of course “it depends”.
In the English decision Westminster Bank Ltd v. Pinion, [1965] Ch. 85, the court played the role of art critic, questioning whether an attempt on the part of a wealthy testator to place the artworks he personally created along with his studio into a charitable trust was valid. The issue before the court was the perceived lack of “quality” in the art, and whether there would be any “public benefit” to the collection being held in a charitable trust. In discussing the quality of the testator’s artwork (or lack thereof), the court states:
“Where a museum is concerned and the utility of the gift is brought in question it is, in my opinion, and herein I agree with the judge, essential to know at least something of the quality of the proposed exhibits in order to judge whether they will be conducive to the education of the public… However that may be, there is a strong body of evidence here that as a means of education this collection is worthless. The testator’s own paintings, of which there are over 50, are said by competent persons to be in an academic style and ‘atrociously bad’ and the other pictures without exception worthless.” [emphasis added]
The court in Pinion ultimately ruled the quality of the art was such that there was no public “benefit”, and that accordingly the charitable trust had failed and the paintings and studio would fall to the residue of the estate. In coming to such a decision, the court states:
“It was said that this matter is a matter of taste, and de gustibus non est disputandum [of taste there is no disputing], but here I agree with the judge that there is no accepted canon of taste on which the court must rely, for it has itself no judicial knowledge of such matters, and the unanimous verdict of the experts is as I have stated. The judge with great hesitation concluded that there was the scintilla of merit which was sufficient to save the rest. I find myself on the other side of the line. I can conceive of no useful object to be served in foisting upon the public this mass of junk. It has neither public utility nor educative value. I would hold that the testator’s project ought not to be carried into effect and that his next-of-kin is entitled to the residue of the estate.” [emphasis added]
I feel bad for the testator in Pinion and the rather harsh critique of his artwork. What is considered “quality” in art is always subjective, as Van Gogh himself famously only sold a single painting during his lifetime. What cases like Pinion make clear however is there must be some perceived “public benefit” when considering whether a certain collection should be allowed to form part of a charitable trust, and the court accordingly is sometimes required to play the role of art critic. Who knows, maybe in 200 years the paintings you created during the pandemic could be considered masterpieces. Until then the court may treat your paintings less kindly should you try to create a museum in your honour.
Thank you for reading.