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Simon widow loses another battle in estate fight

November 17, 2011

Bren Simon has lost another round of appeals in the legal battle over her late husband's more than $2 billion estate.

The Indiana Court of Appeals on Thursday ruled that Bren Simon did not have legal standing to challenge a Hamilton County judge's refusal to recuse himself from the case after Bren took issue with his choice of personal counsel to represent him in front of a state judicial commission.

Bren's efforts to remove Superior Court Judge William J. Hughes from the case began when the judge hired two Bingham McHale attorneys to represent him after he was charged with driving while intoxicated in North Carolina in October 2010. A different attorney at the same firm represents Simon Property Group, which got involved in the case after Bren sought to cash out Melvin's ownership units.

Hughes replaced the Bingham McHale attorneys on Nov. 22, 2010, three days after Bren’s attorneys objected and asked for a stay in the case. Hughes said he has “no bias” for any party or attorney in the case, but Bren’s attorneys were not convinced.

This was the second setback for Bren Simon at the Court of Appeals. In April, the court dismissed her petition seeking to reverse Hughes' ruling last year removing her as interim trustee of the mall magnate's estate.

In the ruling issued Thursday, Judges Edward Najam and Melissa May concluded that once Bren Simon was removed as interim trustee, she lost the ability to pursue on appeal on any issue, including whether Hughes should have recused himself. The court found that ability fell to her successor, retired Indiana Supreme Court Judge Theodore R. Boehm.

“We conclude that when Bren was removed as Personal Representative and Trustee she lost her authority to pursue this appeal in a representative capacity, and Bren was not a party in her individual capacity in the trial court,” Najam wrote. “Accordingly, we hold that Bren lacks standing to maintain this appeal in either a representative capacity or an individual capacity. Thus, we are without jurisdiction to consider this appeal on the merits, and we dismiss.”

Judge Patricia Riley dissented and said the majority’s decision dismissing the interlocutory appeal is “a disservice to justice.”

In removing Bren as trustee, Hughes cited her 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.

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 $500 million worth of ownership units in shopping mall giant Simon Property Group Inc. without appropriate professional advice, the judge wrote.

Attorneys for Bren argued that 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, including the transfer of her husband's stake in the Indiana Pacers and moves to appraise the value of a vast array of holdings.

The plaintiff in the case is Melvin's daughter Deborah Simon, who claims her stepmother coerced Melvin to make changes to his estate plan in February 2009, seven months before he died at age 82.

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. The stock price and dividend both have rebounded.

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