Estate of Nicklin - [2025] NZHC 2597

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-002045

[2025] NZHC 2597

UNDER Section 14 of the Wills Act 2007

IN THE MATTER OF

the Estate of MARK PHILIP NICKLIN

BETWEEN

CAROLINE CHRISTINE GRAF

Applicant

AND

[ ]

Defendant

Hearing: On the papers

Appearances:

K A Carr for the Applicant

Judgment:

8 September 2025

JUDGMENT OF WALKER J

This judgment was delivered by me on 08 September 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

C&F Legal Limited

Re Estate of M P Nicklin [2025] NZHC 2597 [8 September 2025]

[1] The applicant, Ms Caroline Graf, seeks an order under s 14 of the Wills Act 2007 (the Act) that a document be declared the valid will of her brother, Mr Mark Philip Nicklin. Mr Nicklin died on 11 April 2025.

[2] The document in question is annexed to Ms Graf’s affidavit filed in support of the application.1 It is signed by the deceased and dated 7 April 2025, a few days before his death. The document is unwitnessed. It was found by attending police officers in a black folder next to his bed, together with other supporting documentation prepared by the deceased in the days before his death.

[3] The document is entitled “will and final testament”. It records in clear and lucid fashion the wishes of the deceased with respect to the disposal of his estate which he leaves to Ms Graf, and their brother, Mr Paul Frederick Nicklin, in equal shares. It imbues Ms Graf with responsibility for carrying these wishes into effect. The sole reason given being that it will be easier for Ms Graf, who lives in New Zealand, to perform duties as executor than it would be for Paul Nicklin who lives in Spain.

Preliminary matters

[4] This application comes before me as Duty Judge. No death certificate was provided. By minute of 26 August 2025, I requested that one be supplied (or its absence explained) and that the Court be updated as to whether the Coroner has ruled on the death.

[5] A certified copy of the interim death certificate was subsequently provided along with the Coroner’s certificate of interim findings, dated 27 August 2025.

Application to proceed by originating application without notice

[6]Ms Graf seeks leave for this application to be made on a without notice basis.

[7] Originating applications may be made without notice where one of the grounds in r 7.23(2)(a) of the High Court Rules 2016 applies and when all reasonable enquiries

1 The document is annexed to Ms Graf’s affidavit as exhibit “A”.

have been made and steps have been taken to ensure the application contains all relevant material.2 One of the express grounds is where the interests of justice require the application to be determined without serving notice of it.3 Ms Graf relies on this ground.

[8] All persons affected must have a proper opportunity to be represented in the proceedings,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 2597
Decision Date: 8 September 2025

CaseChat Overview and Summary

Caroline Christine Graf, the applicant, has filed an application in the High Court of New Zealand under section 14 of the Wills Act 2007, seeking a declaration that a document be recognised as the valid will of her late brother, Mark Philip Nicklin. The document in question, signed by the deceased and dated 7 April 2025, is an unwitnessed document found by police near his bed. The document, titled "will and final testament," clearly outlines the deceased's wishes for the distribution of his estate, which he intends to leave to Ms Graf and their brother, Paul Frederick Nicklin, in equal shares. The court must determine if the document, despite not meeting the statutory requirements for a valid will, accurately reflects the deceased's testamentary intentions.

The primary legal issue before the court is whether the document, which lacks the necessary witnessing as required by section 11 of the Wills Act, can still be recognised as the valid will of Mark Philip Nicklin under section 14 of the Act. Section 14 allows the High Court to declare a document valid if it captures the true testamentary intentions of the deceased, even if it does not comply with the formal requirements of section 11. The court must weigh the evidence to determine if the document expresses the deceased's intentions and if it is in the interests of justice to declare it a valid will.

The court found that the document indeed appears to be a will, as it contains typical will language and is described as such by the deceased. Although it lacks the required witnesses, the document clearly outlines the deceased's intentions regarding the distribution of his estate. Supporting evidence, including an email and a letter of instructions sent by the deceased to Ms Graf on the day of his death, corroborate the contents of the document. These additional documents detail the deceased's estate plans and reinforce his intention to bypass intestacy laws. The court concluded that the document accurately reflects the deceased's testamentary intentions, and it is appropriate to declare it a valid will under section 14 of the Act.

The court granted the applicant's request to proceed without notice to other interested parties, finding it in the interests of justice to do so. The court ordered that the document dated 7 April 2025, as it appears in exhibit "A" of Ms Graf's affidavit, is declared the valid will of Mark Philip Nicklin.

Orders