Charity sues to collect deceased Manitoban’s promised but allegedly stolen donation By: Katie May Posted: 5:58 PM CDT Wednesday, Aug. 30, 2023 Last Modified: 6:35 PM CDT Wednesday, Aug. 30, 2023 Updates

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This article was published 30/08/2023 (1132 days ago), so information in it may no longer be current.

A national charity has launched a legal battle after a Manitoban’s promised posthumous gift never arrived.

The Heart and Stroke Foundation of Canada is going after nearly $400,000 it says was stolen from the estate of a Manitoban whose last wish was to give to the charity. The foundation sought and was granted a court order this week that stakes claim to two northern lakefront properties between Flin Flon and Cranberry Portage that were allegedly paid for with misappropriated funds.

When Flin Flon resident Mike Kish died in 2017, he left money and belongings to his relatives and various charitable and religious organizations. After those other beneficiaries had been paid, the Heart and Stroke Foundation was to be the sole residual beneficiary of Kish’s estate, according to the will he signed in 2007.

But the Heart and Stroke donation didn’t arrive, and the organization now says it was notified that the man Kish appointed as his power of attorney and co-executor of his estate was dipping into the estate account to buy a vehicle, pay his mortgage and credit-card bills, and misappropriating hundreds of thousands of dollars. Estate co-executor Dallas Mymko died in 2022 at age 70. The Heart and Stroke Foundation is suing Mymko’s widow, son and others the charity believes knew or ought to have known they were benefiting from stolen funds. Mymko wasn’t a beneficiary in Kish’s will, nor were any members of Mymko’s family.

The statement of claim was filed in Manitoba’s Court of King’s Bench earlier this month, and none of the allegations it contains have been proven. It also names Manitoba lawyer Gregory Bauman as a defendant. Bauman was the other co-executor of the Kish estate. He notified the Heart and Stroke Foundation of Mymko’s misuse of the estate trust. The charity now accuses Bauman of a breach of his fiduciary duty, arguing the lawyer is liable for Mymko’s actions.

In a phone call to Bauman in December 2021, about a month before he died, Mymko admitted he took $79,000 from the Kish estate fund to buy a vehicle, and took $61,000 to pay down his mortgage on the home he co-owned with his wife, according to the statement of claim. The Heart and Stroke Foundation investigated and found at least 15 withdrawals by Mymko from the estate account worth $395,203.86 over four years, from 2018 to 2021.

In 2018, Kish’s estate was valued at $872,692, the claim states.

Charities do go to court to make sure deceased individuals’ wishes are respected, “sometimes quite aggressively,” to ensure they get everything the individual wanted them to have, said Winnipeg estate litigation lawyer Ken Mandzuik, a partner with Tradition Law. But cases such as this one are relatively rare.

“I don’t recall seeing a charity go after someone making these kinds of allegations. It wouldn’t be common.”–Lawyer Ken Mandzuik

“I don’t recall seeing a charity go after someone making these kinds of allegations,” he said. “It wouldn’t be common.”

A representative for the Heart and Stroke Foundation couldn’t be reached for comment. The foundation’s Winnipeg-based lawyer declined to comment.

Bauman also declined to comment, saying he had not yet been served with the statement of claim, which was filed in court Aug. 21. The Free Press left messages with Mymko’s wife and surviving relatives of Kish, but did not hear back Wednesday.

The Heart and Stroke Foundation found out about the alleged misappropriation of funds in February after receiving a letter from Bauman, who conducted a subsequent review of the estate account, according to an affidavit from the Heart and Stroke Foundation’s senior manager of estates administration. The manager expressed concerns that Mymko’s wife was aware of the allegations and might be looking to sell the two adjacent properties she’s now the sole owner of on Lake Athapapuskow.

“I am further concerned that if the properties are sold, the plaintiff have (sic) difficulty collecting on any judgment obtained,” the affidavit states.

“I am further concerned that if the properties are sold, the plaintiff have (sic) difficulty collecting on any judgment obtained.”–Affidavit

On Monday, a Court of King’s Bench judge granted the Heart and Stroke Foundation a pending litigation order declaring its interest in the matter. The charity was notified following Kish’s death that it was listed as the residual beneficiary in his will.

A hearing date has not yet been set.

Mandzuik, who has been litigating estate matters for almost 10 years, said charities will make a cost-benefit analysis before deciding whether to pursue legal action.

“The charity sees it as their obligation. If they want to say to people, ‘Leave us money in your will,’ they want to make sure… that the testator’s wishes are fulfilled. They’re fighting for the dead person,” he said.

Courts also guard someone’s last will and testament, but individuals should start by getting their wills properly drafted by a lawyer and keep them updated to ensure their wishes are respected after their death, Mandzuik said.

“The charity sees it as their obligation. If they want to say to people, ‘Leave us money in your will,’ they want to make sure… that the testator’s wishes are fulfilled. They’re fighting for the dead person.”–Lawyer Ken Mandzuik

“Spending money to get a will properly done by someone experienced in it can save grief and heartache and money for your relatives, and make sure that the money is going where it’s supposed to go.”

katie.may@winnipegfreepress.com