Money left to Heart and Stroke Foundation in Manitoban's will misappropriated, lawsuit alleges

The Heart and Stroke Foundation of Canada alleges over $395,000 was misappropriated from the estate of a Manitoba man who named the charitable organization as his main beneficiary.

The foundation accuses co-executor Dallas Mymko — who died last year — and lawyer Gregory Bauman of "reckless, wanton behaviour" regarding the estate assets of Michael George Kish, according to a statement of claim filed in Manitoba Court of King's Bench on Aug. 21.

Two of Mymko's relatives are identified as defendants in the lawsuit as well. It also names two other individuals — identified only as "John Doe and "Jane Doe" — and "persons unknown," all of whom were allegedly beneficiaries of Mymko's estate and received proceeds from the Kish estate.

None of the allegations have been proven in court. CBC news was unable to reach Mymko's relatives who are named in the lawsuit for comment — one of whom served as administrator or executor in Mymko's own estate after he died, according to the suit.

CBC News contacted Bauman's law office but did not receive a response.

$395K in transfers, payments from estate: lawsuit

Kish died in December 2017. In his will, dated December 2007, Kish left "special gifts" to several of his family members, as well as charities and religious institutions he supported, the statement of claim says.

The rest was to go to the Heart and Stroke Foundation of Manitoba, which was named as the sole residual beneficiary of Kish's estate, according to the lawsuit. 

The estate included a property in the northwestern Manitoba community of Flin Flon, valued at about $22,500, the suit says. There were also nine bank accounts, several investment accounts, life insurance policies and more associated with the estate. All told, the assests totalled nearly $873,000, according to court documents.

Mymko and his relatives weren't listed as beneficiaries in the will, but he was named as co-executor of the Kish estate and retained power of attorney for Kish.

Bauman, a lawyer with a Flin Flon-based practice, was named co-executor and lawyer for the Kish estate, according to the statement of claim.

The lawsuit says the month after Kish died, Bauman and Mymko opened an account in the name of "The Estate of Mike George Kish" at a bank in Flin Flon.

The lawsuit alleges various assets of the estate were then liquidated and the money transferred into this account.

Between August 2018 and December 2021, Mymko "wrongfully withdrew or transferred money" from the estate account and took the money for himself, or for the two relatives or unnamed individuals identified as defendants, the lawsuit alleges.

Transfers and payments totalling about $395,000 were made from that account, including more than $20,000 to a Canadian Tire Mastercard, $81,000 to an MBNA Mastercard and $79,000 to Twin Motors, among others, the statement of claim says.

As well, more than $20,000 was transferred to one of Mymko's relatives and $6,000 in bank drafts were made payable to Mymko's other relative, according to the lawsuit. It states Mymko also withdrew $128,500 for himself.

The Heart and Stroke Foundation says those charges weren't authorized by the will and constitute a breach of trust and misappropriation of funds.

Money allegedly transferred for car, mortgage

The organization also says in December 2021, Mymko verbally admitted to Bauman that he transferred himself $79,000 in early 2019 to buy a vehicle. Mymko also told the lawyer he withdrew $61,000 from the estate account in April 2021, which he used to pay down a mortgage for properties he owned with a relative, according to the suit.

The foundation is seeking compensation, as well as admissions from Bauman, Mymko's estate and some of his relatives that they knew or should've been aware they were participating in a breach of trust and benefiting from "unjust enrichment."

Its lawsuit argues that money should be returned with interest, and says Bauman should be held responsible for that as co-trustee of Kish's estate.

The lawsuit alleges Bauman failed to account for the estate property and to intervene when Mymko breached trust and misappropriated funds.

The lawyer knew, or should have known, Mymko was breaching terms of the will and misappropriating funds and is therefore liable for "all amounts wrongfully taken from the Kish estate, plus interest," the statement of claim argues.

One of the relatives of Mymko named in the suit also should have known what he was doing for their mutual benefit, according to the Heart and Stroke Foundation.

She, too, should pay back estate beneficiaries because she was "wrongfully enriched" by money taken from the estate under false pretences, the lawsuit states.

The Heart and Stroke Foundation wants damages repaid to the estate, and wants an administrator appointed to take it over.

A lawyer representing the Heart and Stroke Foundation declined to comment.