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Judge appoints former justice as trustee over Simon estate

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A Hamilton County judge has ordered Bren Simon removed as personal representative and interim trustee over her late husband's estate, replacing her with a retired justice of the Indiana Supreme Court.

The ruling by Superior Court Judge William J. Hughes represents a turning point in an ugly family squabble over Melvin Simon's more than $2 billion fortune. It's a big victory for Deborah Simon, one of Melvin's children from a previous marriage, who had argued Bren is unfit to serve as trustee.

"The record herein is replete with examples of conduct by Bren Simon justifying her removal in both capacities," Judge Hughes wrote in the order entered Dec. 15.

The judge cited Bren's decision to distribute $13 million from the estate to herself without notifying other trust beneficiaries, a move she later tried to recast as a loan, albeit one without an interest rate or repayment schedule. Among Bren's other questionable decisions: Paying her attorneys more than $3 million from the estate without the court's approval, and moving to convert more than $600 million ownership units in Simon Property Group Inc. without appropriate professional advice, the judge wrote.

Judge Hughes appointed former Indiana Supreme Court Justice Theodore R. Boehm, who retired earlier this year and is now a senior judge, to replace Bren as both trustee and Melvin's personal representative. The judge chose an outsider because "successor personal representatives" noted in Melvin's will, including his son and Simon Property Group CEO David Simon, are either named parties or witnesses in the pending will contest.

Judge Hughes ordered Bren to immediately deliver all records pertaining to the estate to Judge Boehm and to provide a full accounting of her activities as interim trustee within 60 days.

Deborah's legal team argued in July that Bren is unfit to serve as trustee, saying that she is hostile toward her stepchildren and already had bungled several important decisions.

They played snippets of videotaped testimony from Bren, taken in March, in which she describes Deborah and her siblings Cynthia Simon-Skjodt and David Simon, the chairman and CEO of Indianapolis-based Simon Property Group, as spoiled, vicious, and hurtful. In e-mails entered into the court record, Bren calls Deborah "bin Laden" and describes the actions of David as "terrorism."

Attorneys for Bren argued she served capably as executor and trustee of the estate of her late husband, pointing to a series of moves she has signed off on that include the transfer of her husband's stake in the Indiana Pacers and moves to appraise the value of a vast array of holdings.

Bren's attorneys are trying to remove Judge Hughes from the case, after taking issue in November with the judge’s choice of personal counsel to represent him in front of a state judicial commission. Hughes hired two attorneys with Bingham McHale after he was charged with driving while intoxicated in North Carolina in October. A different attorney at the same firm represents Simon Property Group.

Judge Hughes replaced the Bingham McHale attorneys on Nov. 22, three days after Bren’s attorneys objected and asked for a stay in the case. Judge Hughes said he has “no bias” for any party or attorney in the case, but Bren’s attorneys were not convinced. The judge on Wednesday certified the appeal, fast-tracking a review by another judge.

Deborah claims Bren coerced Melvin to make changes to his estate plan in February 2009, seven months before he died at age 82. Deborah contends Melvin was suffering from dementia and didn’t understand what he was doing when he signed off on the plan, which boosted the share of his fortune going directly to Bren from one-third to one-half. The changes also wiped out a portion that was to go to Deborah and her two siblings from Simon’s first marriage—Cynthia and David.

Bren has claimed in court filings that the changes to the will reflected Melvin’s desire to compensate her for a drop in the company’s stock price and a reduction in the cash dividend.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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