A forceful and highly opinionated woman who fled the Nazis and became an internationally renowned artist, futurist and sociologist had no trouble making her preferences clear—right up until the end, a Buffalo surrogate concluded in upholding an extensive donation of archives to a not-for-profit foundation.
“Magda had her good days and her not such good days in her last two months, but she was always able to make her wishes known,” Erie County Surrogate Barbara Howe (See Profile) found in Matter of McHale, 2008-1015/g. “More importantly, she was always able to make clear when she disagreed with something.”
“Magda” is the late Magda Cordell McHale, an early proponent and leader in futuristic thinking and artwork. McHale died near Buffalo in 2008, one month after making an inter vivos gift of her papers and artwork, and those of her late husband, artist John McHale, to their foundation.
John McHale’s children challenged the competency of their stepmother to make the gift, which was seemingly at odds with a will drafted a year earlier that bequeathed several artworks to the stepsons. Howe found the inter vivos gift valid and said the items gifted to the foundation are not part of McHale’s estate.
The matter centers on an iconic woman who fled from Hungary, a step ahead of the Nazi regime that murdered her parents and sister, and who found refuge and love in Palestine.
In Palestine, then Magda Lustigova met and married Frank Cordell, a prominent British composer and Big Band leader who was working for British intelligence during World War II. After the war, the Cordells moved to England, where they artistically collaborated with British modern artist John McHale.
The Cordells and McHale are credited with convening the avant-garde Independent Group of artists, authors, architects and critics and launching “This Is Tomorrow,” a famous exhibition at the Whitehall Art Gallery in London that mixed fine arts and commercial products and is credited with inspiring the British pop art movement.
Frank Cordell and Magda divorced and, in 1961, she married McHale. The McHales moved to the United States, immersing themselves in academia, associating with the likes of intellectual Buckminster Fuller and becoming active in the interdisciplinary and artistic movement known as futurism, records show. They dedicated themselves to sociological research, jointly wrote several books on futuristic trends and continued to produce artworks.
After John McHale died in 1978, Magda moved to Buffalo where she started the Center for Integrative Studies at the University at Buffalo and joined the faculty even though she did not have an advanced degree.
In a will executed in 2007, Magda bequeathed John McHale’s paintings to his sons and also directed that they could each select one of her paintings, with the remainder offered to the Albright-Knox Art Gallery in Buffalo, the Yale Center for British Art and the Tate Gallery in London.
However, a month before her death at the age of 86, McHale executed an “instrument of gift” that gave all of her papers, artworks and other materials, as well as those of John McHale, to a foundation she had established, the John McHale and Magda McHale Archives Inc.
The prime question before Howe was whether Magda McHale knew what she was doing when she gave her archives to the foundation as an inter vivos gift.
Howe said everyone agrees that McHale had a strong personality.
One professor with whom McHale worked described her as “dynamic, fascinating, curious…very creative, very difficult, very controlling,” according to the decision. A close friend said she was “vibrant and wonderful and opinionated and we argued a lot.” Two witnesses who visited McHale about a week before her death “indicated that Magda would make quite clear to them when they (or someone else with her) said something with which she disagreed, and at times Magda’s disagreement was displayed quite forcefully,” Howe noted.
A neurosurgeon who operated on McHale’s brain to relieve symptoms of hydrocephalus five weeks before she signed the “instrument of gift” testified that his patient was “impaired” when he last saw her about a month before her death. However, he also said his observation constituted only a “snapshot of time,” suggesting that someone who saw her more frequently would have a better handle on her mental competency.
Denise Kelleher, a close friend with whom McHale lived the last months of her life, said McHale was mentally sharp and said there is no question she understood the implications of the gift.
Howe said the sons couldn’t come close to meeting their high burden for establishing McHale’s incompetency.
“The overwhelming weight of the credible evidence—well beyond the ‘clear and convincing’ standard—establishes both intent and capacity,” Howe wrote. “[A]ll the credible evidence…establish[es] beyond question that Magda had the requisite intent and capacity on the day in question.”
Hugh Russ III, an attorney with Hodgson Russ in Buffalo that represents the foundation, said the ruling suggests that the inter vivos gift supersedes the will in which McHale bequeathed artwork to her stepsons.
“I imagine there will have to be a negotiated result,” Russ said. “By this decision, I think the foundation is entitled to all art of John McHale and Magda McHale, but I recognized that McHale family members will take the opposite position. I think we ought to be able to reach a negotiated settlement under which the foundation gets some of it, and the kids [receive some of the artwork] as well.”
James Boehler, an attorney in Rochester who represents the stepsons, was not available for comment.
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