Dear Colleagues and Friends,
On June 29th, 2015, after a lengthy legal battle lasting more than six years, a detailed judgment with historical significance in the literary world was rendered by the Tel Aviv District Court. In this judgment, the Tel Aviv District Court held that the literary estate of the late Max Brod as well as the writings of his good friend and renowned author, Franz Kafka, will be transferred for safekeeping to the National Library in Jerusalem. Herzog, Fox & Neeman was appointed by the Court to act as the executor of Max Brod’s estate and represented the estate in these proceedings which resulted in the rendering of two judgments which fully accepted the arguments of the estate.
Max Brod was a jurist, author, playwright and composer who was active in Prague and Israel during the 20th century. While studying law at a university in Prague, Brod met the well-known author, Franz Kafka. There the two formed a friendship that would continue until Kafka’s death in 1924. Brod recognized Kafka’s talent and lead the publication of Kafka’s creative works during his life, and faithfully edited and publicized Kafka’s writings after Kafka’s passing.
In 1939, after the Nazis rose to power, Brod escaped Prague taking Kafka’s writings with him. Brod settled in Israel and lived there until his death in 1968. In Israel, Brod met Ms. Ilse Esther Hoffe who became his personal secretary.
Max Brod’s will provided that Ms. Hoffe would be the sole heir of the main portion of his estate. The will also appointed Ms. Hoffe as the executor of Brod’s estate. However, with respect to his literary estate, Brod provided in his will that following Ms. Hoffe’s death, the literary estate be transferred to a public archive to be preserved. The will also directed Ms. Hoffe to reach an agreement with a public library in Israel or abroad where the literary estate would be transferred for safekeeping.
Ms. Hoffe passed away in 2007. Following her death, a legal dispute arose with regard to who held the rights to the literary estate that was bequeathed to Ms. Hoffe by Max Brod. On one side stood Ms. Hoffe’s daughters who claimed that their mother’s will should be executed according to its terms. While on the other side, the National Library in Jerusalem claimed that Mr. Brod's will provided that the literary estate should be transferred to it for safekeeping. The Court appointed Advocate Ehud Sol of Herzog, Fox & Neeman as the executor of the Estate of late Max Brod. Advocate Sol was represented in the legal proceedings that ensued by a team lead by Advocate Joseph Ashkenazi of the firm’s Litigation Department.
The heart of the dispute between the parties involved the interpretation of Max Brod’s will and the identity of the heir of the literary estate. Another question that arose, was the scope of the literary estate of the deceased and, specifically, if it included the writings of Franz Kafka. In this regard, the heirs of Ms. Hoffe argued that Kafka’s writings were not part of Max Brod’s literary estate and that Mr. Brod gave Kafka’s work to Ms. Hoffe as a gift during his lifetime. They supported this argument with various letters.
The Family Court accepted in full the position of Herzog, Fox & Neeman and determined that Brod’s will should be interpreted as an arrangement of “successive heirs” meaning, that after Esther Hoffe’s death, the literary estate, of which Kafka’s writings are a part, will be transferred in its entirety to the National Library and that Brod’s estate and Kafka’s writings were not given to Hoffe or her daughters as a gift.
After the judgment was rendered by the Family Court, Ms. Hoffe’s daughters filed an appeal with the Tel Aviv District Court.
On June 29th, 2015, in a detailed decision which carries historical significance in the literary world, a panel of three Judges (Vice President Yeshayahu Schneller, Vice President Dr. Kobi Vardi and Judge Hagai Brenner) rejected the appeal and accepted the position of the executor of the estate, Advocate Ehud Sol.
In accordance with this judgment, the Court affirmed that Brod’s estate was not given as a gift to Esther Hoffe or her daughters and that the literary estate and Kafka’s writings that were in Brod’s possession should be given to the National Library in Jerusalem for their preservation.
The leading opinion, written by the Honorable Judge Hagai Brenner, is worth citing:
"In the end, the time has come to correct the blatant injustice caused to Brod due to how his literary estate was handled [meaning the handling of the literary estate by the late Ms. Hoffe during her lifetime - the undersigned]. The time has come to finally realize his paramount wishes and desires regarding the perpetuation of his literary works and those of his late brother, Otto Brod. The time has come for the “friends from Prague to meet at the library” meaning the National Library. It is also fitting that Kafka’s writings be included among them."
Sincerely,
The Litigation Department
Herzog, Fox & Neeman
