Simon daughter sues shopping mall magnate’s widow over will
Lou Ann Anderson
January 11, 2010
www.EstateofDenial.com

The use of undue influence is a common accusation with regard to estate disputes.  This same undue influence, however, has also been found as a common tactic used in estate looting actions.  It certainly was a factor in the Astor estate looting case and is now the basis of allegations set forth in a new dispute surrounding the estate of Mel Simon, founder of what has become Simon Property Group, Inc., the nation’s largest owner of shopping malls.  Simon was also co-owner of the Indiana Pacers.

The Indianapolis Business Journal first reported this story:

Melvin Simon’s daughter Deborah filed court papers Thursday afternoon charging her father was coerced into approving a new estate plan in February 2009 that dramatically increased the amount of his fortune going to her stepmother, Bren.

The will contest, filed in Hamilton County Superior Court, alleges that “Melvin was so ill that he was unable to sign either the new will or trust agreement himself, necessitating someone to hold a pen in Melvin’s hand and move his hand as he allegedly ‘signed’ both documents.”

Melvin Simon, co-founder of Simon Property Group, died Sept. 16 at age 82. He had pancreatic cancer and, according to court papers, was suffering from dementia and neurological disorders “that impaired his language, reading, writing, cognition, memory and understanding.”

Per the complaint, the “hastily prepared” new estate plan was executed on Feb. 13, 2009, and replaced a comprehensive plan that had been in effect for more than a decade.

Melvin’s previous comprehensive estate plan had been in effect for more than a decade. That estate plan, as reflected in his will and trust, was the result of a carefully considered, deliberate process and was developed with the assistance of Melvin’s lawyers, including a local law professor specializing in tax, trusts, and estates, as well as his accountants and financial planners. It was implemented only after numerous memoranda and written and oral presentations were made to Melvin setting out his assets and how they would be distributed upon his death. Essentially, this prior estate plan divided his assets into three equal portions:  one-third for Bren outright; one-third for a marital trust with Bren as the sole income beneficiary (with the remainder to pass to Melvin’s children upon her death); and, consistent with Melvin’s lifetime practice of philanthropic activity, one-third to a series of charitable lead annuity trusts that would donate tens of millions of dollars each year to various local and national charities, with Melvin’s children ultimately receiving the remainder (if any) after a predetermined period.

The complaint describes the new plan as follows:

On February 13, 2009, this estate plan was radically altered after a three-hour meeting prior to and during which Melvin was not provided a single document summarizing his assets or the new estate plan. Melvin was not provided a draft of the new estate documents before the meeting, nor did he even read them in their entirety during the meeting. Under this new estate plan, Bren would receive hundreds of millions of dollars more than Melvin had previously intended to provide, the inheritance of Deborah, Cynthia A. Simon Slgodt, and David E. Simon would be dramatically reduced, and essentially all charitable donations would be eliminated.

According to these hastily created documents, Bren is to receive outright one-half of an estate that totals more than $1 billion, while the other half is to be placed in a marital trust with Bren as the sole income beneficiary. These documents also suggest that it was Melvin’s intent - after a lifetime of charitable giving totaling more than $150 million - to leave more than a billion dollars to Bren with almost nothing going to charity until, at the earliest, her death (which, as an actuarial matter, is not expected for 20 years). Moreover, these changes were so hurriedly implemented that the trust agreement is now internally inconsistent and makes little sense as drafted and executed. And all of this took place while Melvin was very ill and dependent on Bren for his care and well-being. In fact, Melvin was so ill that he was unable to
sign either the new will or trust agreement himself, necessitating someone to hold a pen in Melvin’s hand and move his hand as he allegedly “signed” both documents.

These allegations bring to mind the estate of John “Buck” Jones, once majority shareholder and president of Carolina Packers.  Upon his 2005 death, Jones’ estate plan was challenged due to a new will made just a month before he died and leaving control of the company to his wife rather than three longtime employees previously anticipated to assume the reins.

EstateofDenial.com made this observation:

Here’s another of those stories in which a late-in-life will alleged to be dramatically different from earlier estate plans is now in dispute.  The side benefiting from the “last will” always attests to the coherence of the decedent while others not surprisingly (and often with good reason) question the competence and potential of undue influence.

Similar problems also surrounded the estate of Georgia car dealer Harvey Strother.  Reports indicate that Strother was a successful car dealership owner who later in life became largely controlled by alcohol abuse.  Three codicils, including one executed just days before his death, shifted assets away from his family and instead to his mistress.

In all these cases, here’s the bothersome issue.  With death fairly imminent, why would a competent person who has been responsible, even taken pride, in their estate planning efforts purposely and dramatically change their will (or trust) in a manner that almost undoubtedly will lead to a legal dispute?  It’s not helpful or caring to leave someone a bequest that is litigation waiting to happen.  Wouldn’t a competent person seek to avoid such a situation?  It’s good for the lawyers and the courts - job security, billable hours and all - but past that, everyone else generally loses.  Think about it - if the person is truly in their right mind?  We know the standard excuses:  how the decedent didn’t have the energy, wanted to avoid hurt feelings, etc.  Really?

Maybe it sometimes legitimately happens that way, but trends are emerging in which these cases can certainly be something more.  And don’t be fooled that a multi-million or even billion dollar estate is required.  As wealth is relative, modest estates can be equally at risk.

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture.  She is the Online Producer at www.EstateofDenial.com and a Policy Advisor with Americans for Prosperity – Texas Foundation.  Lou Ann may be contacted at info@EstateofDenial.com.