Surrogate's Court, Niagara County

Decided on February 26, 2026

File No. 2020-95569/E

John J. Ottaviano, S.

[*1]

I. DOCUMENTS CONSIDERED

1. Verified Petition by Michael D. Mahar, John P. Mahar, Maureen M. Mahar, and Mary Margaret Thrall ("Mahar Children") to Determine Elective Share Pursuant to NY SCPA § 1421, dated February 16, 2024.

2. Answer and Cross-Petition by Thomas Bellonte and Robert P. Hartz, as Executors of the Estate of Joan Hartz Mahar, dated April 17, 2024.

3. Verified Reply to Cross-Petition by Mahar Children, dated July 12, 2024.

4. Mahar Children's Notice of Motion for Summary Judgment, dated March 24, 2025.

5. Affirmation by John P. Mahar in Support of Mahar Children's Motion for Summary Judgment, dated March 21, 2025.

6. Attorney Affirmation by Brian C. Mahoney in Support of Mahar Children's Motion for Summary Judgment, dated March 24, 2025.

7. Memorandum of Law in Support of Mahar Children's Motion for Summary Judgment, dated March 24, 2025.

8. Notice of Cross-Motion for Summary Judgment by the Estate of Joan Hartz Mahar, dated June 3, 2025.

9. Affirmation by Robert Paul Hartz, Co-Executor, in Opposition to Mahar Children's Motion for Summary Judgment and in Support of Estate of Joan Hartz Mahar's Cross-Motion for Summary Judgment.

10. Attorney Affirmation by Sean A. Fitzgerald in Opposition to Mahar Children's Motion for Summary Judgment and in Support of Estate of Joan Hartz Mahar's Cross-Motion for Summary Judgment, dated June 4, 2025.

11. Memorandum of Law in Opposition to Mahar Children's Motion for Summary Judgment and in Support of Estate of Joan Hartz Mahar's Cross-Motion for Summary Judgment, dated June 4, 2025.

12. Executor's Memorandum of Law in Response to the Mahar Children's Motion for Summary Judgment and the Hartz Estate Cross-Petition for Summary Judgment, dated July 25, 2025.

13. Reply Affirmation in Support of Motion for Summary Judgment by John P. Mahar, dated July 17, 2025.

14. Affidavit of Thomas Lytle, dated July 17, 2025.

15. Affidavit of Therese Quarantillo, dated July 24, 2025.

16. Attorney Affirmation by Brian C. Mahoney, dated July 25, 2025.

17. Memorandum of Law in Further Support of Motion for Summary Judgment and in Opposition to Cross-Motion for Summary Judgment by Mahar Children, dated July 25, 2025.

18. Affirmation in Further Support of Estate of Joan Hartz Mahar's Cross-Motion for Summary Judgment by Sean A. Fitzgerald, dated July 30, 2025.

19. Audio recording of a meeting that occurred with David Mahar, the Mahar Children, and Michael Hartz.

[*2]II. PROCEDURAL HISTORY

On July 2, 1992, David J. Mahar and Joan V. Hartz entered into a Prenuptial Agreement (hereinafter "Agreement"). Both parties were represented by independent counsel, and the Agreement incorporated their respective financial schedules.

The Decedent, David J. Mahar, died on January 20, 2020. He was survived by his wife, Joan Hartz Mahar—who herself died on January 21, 2023—and four children: Michael D. Mahar, John P. Mahar, Maureen Mahar, and Mary Margaret Thrall (the "Mahar Children"). The Last Will and Testament of the Decedent, dated December 27, 2019, was admitted to probate by Decree dated June 28, 2022. Walter E. Moxham, Esq. serves as Executor of the Estate of David J. Mahar. The Decedent's estate was valued at approximately $3.87 million at the time of death.

Joan Hartz Mahar is survived by three children: Robert Hartz, Michael Hartz, and James Hartz. Robert Hartz and F. Thomas Bellonte serve as co-executors of the Estate of Joan Hartz Mahar (collectively, the "Respondents" or "Hartz Estate").

On December 28, 2021, Robert P. Hartz, attorney-in-fact/agent for Joan Hartz Mahar, filed a Notice of Election by Surviving Spouse, superseding her bequest under the terms of the Last Will and Testament of the Decedent dated December 27, 2019.

The Petitioners, the Mahar Children, commenced this proceeding pursuant to NY SCPA § 1421 to determine the validity and effect of the elective share claimed by the attorney-in-fact for Joan Hartz Mahar (the "Hartz Estate"). The Verified Petition was filed on February 16, 2024. The Respondents filed an Answer and Cross-Petition on April 17, 2024, followed by the Petitioners' Verified Reply on July 12, 2024. The Mahar Children moved for summary judgment on March 24, 2025. The Estate of Joan Hartz Mahar cross-moved for summary judgment on June 3, 2025. The Executor filed a memorandum in response on July 25, 2025. Both parties submitted reply papers and additional affidavits through July 30, 2025.

III. RELEVANT PROVISIONS OF THE PRENUPTIAL AGREEMENT

The following provisions of the Agreement bear directly on the issues before the Court:

Paragraph 5 provides: "The Prospective Wife specifically acknowledges that her Prospective Husband's assets consist primarily of his one-third ownership in Frontier Stone, Inc. and interest in certain real property. The Prospective Wife specifically agrees to release and does release any and all claims which she may acquire by reason of the marriage herein contemplated to and upon all that separate property or any property which results from an exchange, sale and/or liquidation of those specific assets and any properties, real or personal, which may be purchased with or arise from any such transaction, except as otherwise provided herein." (Emphasis added.)

Paragraph 6 provides that the Decedent agreed, prior to the marriage, to deliver a deed conveying the residence at 4172 Lake Road, Wilson, New York, to be held as tenants by the entirety, free and clear of encumbrances, to be filed immediately following the marriage ceremony.

Paragraph 8 provides: "The Prospective Wife shall have free and unrestricted right to dispose of her property now or hereafter acquired, free from any demand or claim of the Prospective Husband, as husband." The paragraph further states that the "Prospective Husband relinquishes any and all rights as a husband in the estate of the Prospective Wife, and expressly relinquishes and waives any and all right of election as a husband to take any share of the estate of the Prospective Wife." (Emphasis added.)

Paragraph 11 provides that the Decedent agreed to provide in his Last Will and [*3]Testament that, should he predecease Joan during the marriage, "fifty (50%) percent of his estate shall be devised and bequeathed to the Prospective Wife." Paragraph 11 further required the Decedent to obtain "an ordinary life insurance policy upon his life in the sum of One Million ($1,000,000.00) Dollars, with the Prospective Wife being the primary beneficiary thereof," with the children of both parties as secondary beneficiaries. The Agreement specified that "the proceeds derived from said life insurance policy shall be applied as a credit against the Prospective Wife's fifty (50%) percent share of the Prospective Husband's estate." (Emphasis added.)

Paragraph Third of the Last Will and Testament provides, in relevant part, that Joan was to receive fifty percent of the residuary estate, reduced by the "Adjustment Amount," defined as: (a) the proceeds derived from life insurance on the Decedent's life pursuant to the Agreement; and (b) $162,500, representing one-half of lifetime gifts totaling $325,000 made by the Decedent to Joan in 2002 ($200,000) and 2008 ($125,000). (Ver. Pet. Ex. B.)

IV. ARGUMENTS OF THE PARTIES

A. Petitioners' Arguments

The Petitioners contend that at the time of the marriage, the Decedent held significant assets valued at approximately $3.6 million after tax, whereas Joan's assets totaled approximately $319,000. (Ver. Pet. ¶ 6.)

The Petitioners argue that Joan specifically agreed in Paragraph 5 of the Agreement to release any and all claims she might acquire by reason of the marriage to the Decedent's separate property—principally his interest in Frontier Stone, Inc.—and to any property resulting from the exchange, sale, or liquidation of those assets. Accordingly, the Petitioners maintain that Joan's elective share may only be exercised against the non-Frontier Stone assets of the estate. (Ver. Pet. ¶¶ 7, 35; Mahoney Aff. ¶¶ 8, 14; Mahar Aff. Ex. 1, § 5.)

The Petitioners further contend that the vast majority of the Decedent's estate is traceable to the February 13, 1997, sale of his Frontier Stone interest for $8.25 million, the proceeds of which were deposited into an M&T investment account titled to the Decedent. (Ver. Pet. ¶¶ 30—31.) The Petitioners also note that Joan had amassed at least $5 million of personal wealth during the course of the marriage. (Ver. Pet. ¶¶ 25, 27.)

With respect to the life insurance, the Petitioners contend the Decedent fulfilled his obligation under Paragraph 11 of the Agreement by purchasing a Variable Life Insurance Policy (Contract No. #) from New England Variable Life Insurance Company in the amount of $1,000,000. Upon the Decedent's death, the policy paid out $1,421,624.52 to the Joan V. Mahar Irrevocable Life Insurance Trust. The Petitioners argue that this amount should be applied as a credit against Joan's share of the estate. (Ver. Pet. ¶¶ 9, 36; Mahoney Aff. ¶¶ 15—16, 21, Ex. E, Ex. G.)

The Petitioners also assert that Joan breached the Agreement by retitling the policy to the Joan V. Mahar Irrevocable Life Insurance Trust (u/a/d March 2010), thereby changing both the ownership and the secondary beneficiary structure in contravention of Paragraph 11. (Mahoney Aff. ¶ 20; Mahar Aff. Ex. 1, § 11.)

B. Respondents' Arguments

The Respondents contend that Joan did not waive her right of election and that the Agreement's lack of mutuality—the Decedent expressly waived his right of election against Joan's estate in Paragraph 8 of the Agreement, while no reciprocal waiver appears—demonstrates that there was no intent for Joan to waive her right of election against the [*4]Decedent's estate. (Cross Pet. ¶ 19; Hartz Aff. ¶ 19, Ex. B, ¶¶ 8—9; Fitzgerald Aff. ¶ 13.)

The Respondents further argue that Paragraph 11's requirement that the Decedent bequeath 50% of his estate to Joan would become a nullity if Joan had waived her right of election, as the Decedent could have circumvented the provision by placing his assets in trusts or beneficiary-designated accounts. (Fitzgerald Aff. ¶ 14.)

Regarding the life insurance, the Respondents contend the Decedent never procured the policy described in the Agreement. Specifically, the New England Variable Life Insurance Policy was a "Flexible Premium Adjustable Variable Life Policy" rather than the "ordinary life insurance policy" required by the Agreement; it was obtained approximately four and a half years after the marriage rather than within the required 30-day window; and it was procured by Joan rather than by the Decedent. (Hartz Aff. ¶ 13; Cross Pet. ¶¶ 24—25.)

The Respondents also contend that Joan had a claim for equitable distribution of the appreciation of the Frontier Stone holdings during the marriage—from $3,518,000 at the time of marriage to $8,250,000 upon sale in 1997—representing appreciation of more than $4 million. (Hartz Aff. Ex. B, ¶ 15; Mahar Pet. A.)

The Respondents further allege that the Decedent breached the Agreement by failing to distribute 30% of his income to Joan's separate account during the last several years of his life (Cross Pet. ¶¶ 31—33; Hartz Aff. ¶ 10); by using Joan's Power of Attorney to convey the Lake Road property to himself and then to his children with a retained life estate (Cross Pet. ¶¶ 26—27; Hartz Aff. ¶ 14, Ex. D); and by transferring $183,890 held in joint accounts prior to death (Hartz Aff. ¶ 16, Ex. G). Additionally, the Respondents allege that on December 14, 2019—less than one month before the Decedent's death—the Decedent funded the Mahar Family Trust with assets valued at $99,000 to reduce the residuary estate. (Cross Pet. ¶ 30.)

C. Petitioners' Response to Breach Allegations

The Petitioners respond that the Decedent's CPA, Therese Quarantillo, attested that the Decedent overpaid into the joint account by approximately $488,940.47 during the period 2014—2019, and paid $578,160.00 in life insurance premiums from his own income during 1992—2013, thereby more than fulfilling his obligations under the Agreement. (Quarantillo Aff. ¶¶ 5—8.) The Petitioners further assert that the $83,890 transfer from the joint account was to recoup documented overpayments. (Quarantillo Aff. ¶ 8.)

V. LEGAL STANDARD: SUMMARY JUDGMENT

Summary judgment may be granted only when it is clear that no triable issue of fact exists. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986); Phillips v. Joseph Kantor & Co., 31 NY2d 307, 338 N.Y.S.2d 882, 291 N.E.2d 129 (1972); Matter of Werner, 36 Misc 3d 1224(A), 960 N.Y.S.2d 53 (Surr. Ct. Erie County 2011), aff'd, 96 AD3d 1427, 945 N.Y.S.2d 906 (4th Dept. 2012).

The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. Ferrante v. American Lung Ass'n, 90 NY2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308 (1997); Matter of Will of Li, 72 Misc 3d 988, 151 N.Y.S.3d 845 (Surr. Ct. Queens County 2021).

The movant must establish prima facie entitlement to judgment as a matter of law. Matter of Mele, 113 AD3d 858, 979 N.Y.S.2d 403 (2d Dept. 2014); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). If the movant makes a prima facie showing, the burden shifts to the opponent to lay bare affirmative proof establishing the existence of a genuine triable issue of fact. Jacobsen v. New York City Health & [*5]Hosps. Corp., 22 NY3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159 (2014); Zuckerman v. City of New York, 49 NY2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980).

The papers submitted in support of and in opposition to the motion are scrutinized in the light most favorable to the party opposing the motion. Lau v. Margaret E. Pescatore Parking, Inc., 30 NY3d 1025, 68 N.Y.S.3d 405, 90 N.E.3d 1276 (2017); Robinson v. Strong Memorial Hosp., 98 AD2d 976, 470 N.Y.S.2d 239 (4th Dept. 1983). If there is any doubt as to the existence of a triable issue of fact, the motion must be denied. Fairlane Finance Corp. v. Longspaugh, 144 AD3d 858, 41 N.Y.S.3d 284 (2d Dept. 2016); Dykeman v. Heht, 52 AD3d 767, 861 N.Y.S.2d 732 (2d Dept. 2008).

General, conclusory, and unsupported allegations are insufficient to defeat a motion for summary judgment. William Iselin & Co. v. Landau, 71 NY2d 420, 522 N.E.2d 21, 527 N.Y.S.2d 176 (1988); Alvarez v. Prospect Hosp., supra.

VI. ANALYSIS AND DECISION

A. Enforceability of the Prenuptial Agreement

It is well settled that duly executed prenuptial agreements are accorded the same presumption of legality as any other contract, and there is a strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements. Bloomfield v. Bloomfield, 97 NY2d 188, 193 (2001); Matter of Greiff, 92 NY2d 341, 344 (1998). A prenuptial agreement that is "complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms." Van Kipnis v. Van Kipnis, 11 NY3d 573, 577 (2008) (citing Greenfield v. Philles Records, 98 NY2d 562, 569 (2002)); see also Vella v. Vella, 213 AD3d 1225, 1226 (4th Dept. 2023).

In interpreting a prenuptial agreement, "the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized." Strong v. Dubin, 75 AD3d 66, 68—69 (1st Dept. 2010) (quoting Kass v. Kass, 91 NY2d 554, 566 (1998)). Even when a particular paragraph is "not artfully drawn," the entire agreement should be "read as a whole" to give effect to the parties' intentions. MacAllister v. MacAllister, 275 AD2d 1015, 1015 (4th Dept. 2000); see also W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157, 162 (1990) ("A contract is to be construed according to the sense and meaning of the terms which the parties themselves have used.").

This Court finds no basis to disturb the general enforceability of the Agreement. Both parties were represented by independent counsel at the time of execution, the Agreement incorporated full financial disclosure through schedules, and it was duly executed in compliance with applicable formalities.

B. Whether the Prenuptial Agreement Constitutes a Waiver of Joan Hartz Mahar's Right of Election

This is the central question before the Court.

1. The Statutory Framework

Under EPTL § 5-1.1-A(a), a surviving spouse has a personal right of election to take a share of the decedent's estate equal to the greater of $50,000 or one-third of the net estate. This right serves the fundamental public policy of preventing a spouse from being left destitute upon the death of the other. See Matter of Berk, 20 Misc 3d 691 (Surr. Ct. Kings County 2008), rev'd on other grounds, 71 AD3d 883 (2d Dept. 2010).

EPTL § 5-1.1-A(e) governs waivers and releases of this right. Subdivision (e)(1) [*6]provides:

"A spouse, during the lifetime of the other, may waive or release a right of election, granted by this section, against a particular or any last will or a testamentary substitute, as described in subparagraph (b)(1) made by the other spouse. A waiver or release of all rights in the estate of the other spouse is a waiver or release of a right of election against any such last will or testamentary provision."

Subdivision (e)(2) requires that such a waiver or release be "in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property." See Matter of Abady, 76 AD3d 525, 526 (2d Dept. 2010); Matter of Kevelson, 228 AD3d 662 (2d Dept. 2024) (holding that a prenuptial agreement complied with statutory requirements and constituted a valid waiver of the right of election).

Significantly, EPTL § 5-1.1-A(e)(3)(D) provides that a waiver or release of the right of election may be effective "with or without consideration." See Matter of Kevelson, supra.

The statute thus establishes two routes by which the right of election may be waived: (1) an express waiver of the right of election, or (2) a release of "all rights in the estate" of the other spouse, which operates as a constructive waiver. See Matter of Strout, 155 AD3d 1135 (3d Dept. 2017).

2. Application to the Agreement

The Agreement does not contain an explicit, reciprocal waiver of Joan's right of election. Paragraph 8 of the Agreement contains an express waiver of the Decedent's right of election against Joan's estate, but no mirror provision exists. The Court therefore turns to whether Paragraph 5 of the Agreement constitutes a partial waiver under EPTL § 5-1.1-A(e)(1).

Paragraph 5 provides that Joan "specifically agrees to release and does release any and all claims which she may acquire by reason of the marriage herein contemplated to and upon all that separate property or any property which results from an exchange, sale and/or liquidation of those specific assets and any properties, real or personal, which may be purchased with or arise from any such transaction." This language is broad, unambiguous, and self-executing. Joan's entitlement to assert a right of election was obtained solely "by reason of" her marriage to the Decedent—without such marriage, Joan would have had no claim to the Decedent's estate. See EPTL § 5-1.1-A(a).

Reading the Agreement "as a whole and giving effect to all provisions" (Strong v. Dubin, 75 AD3d at 68; MacAllister v. MacAllister, 275 AD2d at 1015), this Court concludes that Joan's release of claims to the Frontier Stone proceeds in Paragraph 5 constitutes a partial waiver under EPTL § 5-1.1-A(e)(1), which permits a waiver "against a particular testamentary substitute." The precise scope of this release encompasses the Frontier Stone assets and all assets and appreciation traceable to the Frontier Stone sale proceeds.

Accordingly, Joan's right of election is valid with respect to those assets of the Decedent's estate that are not traceable to the Frontier Stone interest or its proceeds.

3. The Appreciation of Frontier Stone During the Marriage

The Respondents contend that Joan retained a claim for equitable distribution of the appreciation of the Frontier Stone holdings during the marriage—from approximately $3,518,000 at the time of the marriage to $8,250,000 upon sale in 1997—representing appreciation of approximately $4,732,000. (Hartz Aff. Ex. B, ¶ 15.)

This Court rejects the Respondents' contention. The language of Paragraph 5 is plain and [*7]unambiguous: Joan released "any and all claims which she may acquire by reason of the marriage herein contemplated to and upon all that separate property or any property which results from an exchange, sale and/or liquidation of those specific assets." (Emphasis added.) The phrase "any property which results from sale of those specific assets" necessarily encompasses the full proceeds of the 1997 sale of the Frontier Stone interest—$8,250,000—which includes the appreciation realized during the marriage. As the Court of Appeals has instructed, "[a] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms." Greenfield v. Philles Records, 98 NY2d 562, 569 (2002); Van Kipnis v. Van Kipnis, 11 NY3d at 577.

The release further extends to "any properties, real or personal, which may be purchased with or arise from any such transaction." This language captures not only the Frontier Stone interest itself and the sale proceeds, but any subsequent investments, reinvestments, or assets traceable to those proceeds—including any appreciation thereof. When a prenuptial agreement contains such broad and inclusive language, the court must give effect to its terms rather than rewrite them. See Strong v. Dubin, 75 AD3d at 68—69 (holding that a wife waived her right to assets when the agreement was "read as a whole and giving effect to all provisions"); MacAllister v. MacAllister, 275 AD2d at 1015 (holding that a wife waived her right to her husband's interest in his family's business in a prenuptial agreement).

It would be contrary to the plain language of the Agreement and the expressed intent of the parties to permit Joan to release her claims to the Frontier Stone interest but retain a claim to the very appreciation and proceeds that Paragraph 5 was specifically designed to protect. This Court therefore determines, as a matter of law, that Paragraph 5's partial waiver encompasses the Frontier Stone interest, all proceeds from its sale and liquidation, all assets traceable thereto, and all appreciation of the foregoing.

C. The Life Insurance Policy and Credit

Paragraph 11 of the Agreement required the Decedent to obtain an "ordinary life insurance policy" on his life in the amount of $1,000,000, with Joan as primary beneficiary and the children of both parties as secondary beneficiaries. The proceeds were to be applied as a "credit against the Prospective Wife's fifty (50%) percent share" of the Decedent's estate.

The undisputed proof establishes that the policy in question (Contract No. # ) issued by New England Variable Life Insurance Company) was in force on the Decedent's life at the time of his death, that Joan was the named primary beneficiary, and that the policy paid total death benefits in the amount of $1,421,624.52. The evidence further shows that the Decedent funded the policy by paying the premiums from his own income over many years.

Under the Agreement, the Decedent's obligation was twofold: (1) to maintain a life insurance policy on his life with a face amount of $1,000,000, naming Joan as primary beneficiary, and (2) to have "the proceeds derived from said life insurance policy" applied as a credit against Joan's fifty-percent share. The Court has already determined that the Decedent substantially fulfilled his obligation to provide and maintain the policy. The remaining question is how the proceeds and credit are to be treated for purposes of the elective share and distribution of the estate.

The policy is a separate contract between the insurer and the owner/beneficiary; New York courts enforce such insurance contracts in accordance with their terms. Once the insured dies, the insurer must pay the proceeds as directed in the policy, and a court may not rewrite the insurance contract to divert proceeds to parties other than those designated. The contractual right [*8]to receive the full $1,421,624.52 therefore belongs to Joan (or to her estate or trust, as applicable) under the terms of the policy and must be enforced as such.

At the same time, Paragraph 11 of the Agreement provides that the "proceeds derived from said life insurance policy shall be applied as a credit against the Prospective Wife's fifty (50%) percent share of the Prospective Husband's estate." Construing the Agreement and the policy together, and giving effect to both the contractual insurance entitlement and the prenuptial credit provision, the Court holds as follows:

• For purposes of computing Joan's elective share of the Decedent's net estate, the sum of $1,000,000.00 shall be credited against her share.

• The entire $1,421,624.52 in life insurance proceeds remains payable to Joan (or to the entity holding her beneficial interest) as the policy's beneficiary pursuant to the terms of the insurance contract and is not diverted into the probate estate.

• The additional $421,624.52 above the $1,000,000 face amount is not added to, or used to increase, the credit against Joan's share of the net estate; instead, it remains a contractual benefit flowing to Joan under the policy and is not used to further reduce her elective share.

This construction enforces the insurance policy as a contract according to its terms, while also enforcing the prenuptial Agreement's requirement that $1,000,000 in insurance be applied as a credit against Joan's share of the Decedent's net estate. The policy proceeds are therefore treated as (1) a testamentary substitute for elective-share purposes and (2) a source of a $1,000,000 credit against Joan's share, without disturbing her contractual entitlement to receive the full $1,421,624.52 under the policy.

D. Retitling of the Life Insurance Policy and Change of Secondary Beneficiaries

Paragraph 11 of the Agreement unambiguously designated the children of both parties as the secondary beneficiaries of the $1,000,000 life insurance policy. The undisputed evidence establishes that the policy was retitled to the Joan V. Mahar Irrevocable Life Insurance Trust (u/a/d March 2010), thereby changing both the ownership and the secondary beneficiary structure. Upon Joan's passing, the insurance assets passed solely to her three sons—Robert Hartz, Michael Hartz, and James Hartz—to the exclusion of the Decedent's four children: Michael D. Mahar, John P. Mahar, Maureen Mahar, and Mary Margaret Thrall.

This retitling and change of secondary beneficiaries is in direct contravention of Paragraph 11, which expressly provided that "[t]he secondary beneficiaries of said life insurance policy shall be the children of the respective parties hereto, or the survivors of them." The Agreement further prohibited any borrowing against the policy without Joan's express written permission—a provision that underscores the mutual nature of the obligations surrounding the policy. A party to a contract may not unilaterally alter its material terms. See Bier Pension Plan Trust v. Estate of Schneierson, 74 NY2d 312 (1989).

Accordingly, the Court determines, as a matter of law, that the retitling of the policy to the Joan V. Mahar Irrevocable Life Insurance Trust and the change of the secondary beneficiaries from the children of both parties to Joan's sons alone is null and void as a violation of Paragraph 11 of the Agreement. The children of both parties are the rightful secondary beneficiaries of the policy, as expressly provided in the Agreement.

E. The $162,500 Adjustment

The Decedent's Will provides for an additional adjustment to Joan's 50% share in the amount of $162,500, representing one-half of gifts totaling $325,000 made by the Decedent to [*9]Joan in 2002 ($200,000) and 2008 ($125,000), purportedly in accordance with the Agreement. Whether these gifts were made pursuant to the Agreement, and whether the adjustment is proper in the context of an elective share rather than the testamentary bequest, present triable issues of fact.

F. Breach of the Prenuptial Agreement

Both parties allege breaches of the Agreement by the other.

Respondents' Claims of Breach by the Decedent: The Respondents contend the Decedent breached the Agreement in two principal respects: (1) failure to distribute 30% of his income to Joan's separate account during the last several years of his life; and (2) improper transfer of funds using Joan's Power of Attorney. (Cross Pet. ¶¶ 31—33; Hartz Aff. ¶¶ 10, 16, Ex. G.)

Petitioners' Response: The Petitioners respond that the Decedent's CPA, Therese Quarantillo, attested that the Decedent overpaid into the joint account by approximately $488,940.47 during the period 2014—2019, and paid $578,160.00 in life insurance premiums from his own income during 1992—2013, thereby more than fulfilling his obligations under the Agreement. (Quarantillo Aff. ¶¶ 5—8.)

These competing factual assertions regarding breach cannot be resolved on summary judgment. The CPA's attestation, while detailed, is disputed by the Respondents and raises questions of credibility and weight that are properly reserved for the trier of fact. As the Court of Appeals has instructed, summary judgment is inappropriate where credibility determinations are necessary. Ferrante v. American Lung Ass'n, 90 NY2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308 (1997); see also Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012). The existence and materiality of any breach by either party remains in genuine dispute, and these claims shall proceed to trial.

G. The Decedent's Use of Joan's Power of Attorney

The Respondents raise the issue that the Decedent, acting as Joan's attorney-in-fact: (1) conveyed the Lake Road property to himself and then to his children with a retained life estate; and (2) transferred $183,890.00 held in joint accounts to himself prior to his death.

It is well settled that "a power of attorney is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal, and that the relationship of an attorney-in-fact to his principal is that of agent and principal. Thus, the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal." Matter of Ferrara, 7 NY3d 244, 254 (2006); see also Borders v. Borders, 128 AD3d 1542, 1543 (4th Dept. 2015); Semmler v. Naples, 166 AD2d 751, 752 (3d Dept. 1990).

"Absent a specific provision in the power of attorney document authorizing gifts, an attorney-in-fact, in exercising his or her fiduciary responsibilities to the principal, may not make a gift to himself or a third party of the money or property which is the subject of the agency relationship." Goldberg v. Meyers, 181 AD3d 653, 654 (2d Dept. 2020). Such a gift "carries with it a presumption of impropriety and self-dealing, a presumption which can be overcome only with the clearest showing of intent on the part of the principal to make a gift." Id.; see also Choudhari v. Choudhari, 220 AD3d 835 (2d Dept. 2023); Matter of Tuzzolino, 208 AD3d 664 (2d Dept. 2022); Matter of Boatwright, 114 AD3d 856 (2d Dept. 2014); Matter of Roth, 283 AD2d 504 (2d Dept. 2001).

The Petitioners contend that the $183,890.00 transfer from the joint account was to recoup documented overpayments the Decedent had made into the joint account, as confirmed [*10]by the CPA's affidavit. (Quarantillo Aff. ¶ 8.) However, there is nothing in the record to establish that the Decedent's actions as attorney-in-fact were authorized, were in Joan's best interest, or that the presumption of impropriety attendant to self-dealing has been rebutted.

The conveyance of the Lake Road property by the Decedent, acting as Joan's attorney-in-fact, to himself constitutes an unauthorized act of self-dealing that is presumptively improper as a matter of law. See Goldberg v. Meyers, supra; Matter of Ferrara, supra. Likewise, the transfer of $183,890.00 from jointly held accounts to the Decedent's own account, executed by the Decedent in his capacity as Joan's attorney-in-fact, constitutes an impermissible self-dealing transaction for which the presumption of impropriety has not been overcome. An agent who uses a power of attorney to benefit himself bears the burden of establishing the propriety of the transaction by the "clearest showing of intent on the part of the principal." Goldberg v. Meyers, 181 AD3d at 654. No such showing has been made here.

Accordingly, the Court determines that:

1. The transfer of the Lake Road property by the Decedent to himself and subsequently to his children is null and void ab initio; and

2. The transfer of $183,890.00 from jointly held accounts to the Decedent is null and void ab initio.

H. The Mahar Family Trust Transfer

The Respondents allege that on December 14, 2019—less than one month before the Decedent's death—the Decedent funded the Mahar Family Trust with assets valued at $99,000 to reduce the residuary estate. This transfer, if made within one year of death and without adequate consideration, may constitute a testamentary substitute under EPTL § 5-1.1-A(b)(1)(B) and could be subject to Joan's elective share. See Matter of Schurer, 157 Misc. 573 (Surr. Ct. Bronx County 1935); EPTL § 5-1.1-A(b)(1)(B). The characterization and treatment of this transfer requires further factual development and cannot be resolved as a matter of law.

VII. ORDER

Upon consideration of the foregoing, the submissions of all parties, and the applicable law, it is hereby:

ORDERED that the Petitioners' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, as follows:

GRANTED to the extent that the Court determines, as a matter of law, that the Prenuptial Agreement dated June 29, 1992, constitutes a partial waiver of Joan Hartz Mahar's right of election with respect to the Frontier Stone interest, all proceeds from the sale or liquidation thereof, all assets traceable thereto, and all appreciation of the foregoing, under EPTL § 5-1.1-A(e)(1);

GRANTED to the extent that the Court determines, as a matter of law, that the Decedent fulfilled his obligation to provide his wife, Joan Hartz Mahar, with a $1,000,000 policy of life insurance designating her as primary beneficiary;

GRANTED to the extent that the Court determines, as a matter of law, that $1,000,000.00 of the life insurance proceeds paid on account of Policy No. # shall be applied as a credit against Joan Hartz Mahar's share of the Decedent's net estate in accordance with Paragraph 11 of the Prenuptial Agreement;

GRANTED to the extent that the Court determines, as a matter of law, that the full $1,421,624.52 in life insurance proceeds is payable to Joan (or to the entity holding her beneficial interest) under the terms of the policy, which is a contract that must be [*11]enforced as written, and that the additional $421,624.52 above the $1,000,000 face amount shall not be included in, or used to increase, the credit against her share of the Decedent's net estate.

GRANTED to the extent that the Court determines, as a matter of law, that the retitling of the life insurance policy to the Joan V. Mahar Irrevocable Life Insurance Trust and the change of the secondary beneficiaries from the children of both parties to Joan's sons is a violation of Paragraph 11 of the Agreement the issue is moot by the passing of Joan Hartz Mahar subsequent to the Decedent.

DENIED in all other respects, including but not limited to the breach allegations, and the computation and reduction of the elective share as to assets other than the Frontier Stone interest, its proceeds, traceable assets, and appreciation thereof;

ORDERED that the Respondents' Cross-Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART, as follows:

GRANTED to the extent that the Court declares the Notice of Election filed on December 28, 2021, by Robert P. Hartz on behalf of the Estate of Joan Hartz Mahar, to be valid for all assets of the Decedent's estate other than the Frontier Stone interest, its proceeds, traceable assets, and all appreciation thereof;

GRANTED to the extent that the Court determines, as a matter of law, that the Decedent violated his fiduciary duty as attorney-in-fact for Joan Hartz Mahar, and that the transfer of the Lake Road property to himself is null and void ab initio;

GRANTED to the extent that the Court determines, as a matter of law, that the transfer of $183,890.00 from jointly held accounts by the Decedent, acting as Joan's attorney-in-fact, to himself is null and void ab initio;

DENIED in all other respects, including but not limited to the scope and amount of the elective share, the treatment of Frontier Stone proceeds and appreciation, and all counterclaims and cross-claims, as genuine triable issues of material fact exist;

ORDERED that this matter shall proceed to trial on all remaining issues, including but not limited to:

1. The computation of the net estate for elective share purposes, exclusive of the Frontier Stone interest, its proceeds, traceable assets, and all appreciation thereof, which are subject to Joan's partial waiver under Paragraph 5 of the Agreement;

2. The $162,500 adjustment amount;

3. All claims and counterclaims for breach of the Prenuptial Agreement, including but not limited to the alleged failure to distribute 30% of income to Joan's separate account and the alleged improper transfer of funds;

4. The characterization and treatment of the Mahar Family Trust transfer of $99,000;

5. All other issues necessary for the final accounting and distribution of the Estate of David J. Mahar.

The parties are directed to appear for a preliminary conference on a date to be set by the Court to establish a discovery and trial schedule.

This constitutes the Decision and Order of this Court.

Dated: February 26, 2026

HON. JOHN J. OTTAVIANO,

Surrogate Niagara County Surrogate's Court