Estate of Nicklin
[2025] NZHC 2597
•8 September 2025
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, including beneficiaries under a previous will (if there is one).4
[9] The deceased’s only other sibling, his brother Paul Nicklin, has consented to Ms Graf’s application and the making of the order sought.5
[10] Ms Graf deposes in her supporting affidavit that no previous will was made by the deceased.6 She explains that she has undertaken full enquiries and searches for an earlier will, including searching the deceased’s personal documents and publishing a notice with the Auckland District Law Society on 10 June 2025. None has been found. Accordingly, if the will is not declared valid Mr Nicklin will have died intestate.
[11] The persons who may be affected by the making of an order declaring the will valid will be those who would succeed on an intestacy in accordance with the rules set out in s 77 of the Administration Act 1969.
[12] Relatedly, Ms Graf deposes that the deceased is not survived by a spouse, civil union partner, de facto partner, children, or (their) mother. She explains the enquiries she has made as to the existence of any children of the deceased who could claim an interest in the estate.7
[13] Ms Graf deposes that the deceased might possibly be survived by his father. However, this is unknown due to a long family estrangement. Ms Graf explains that
2 High Court Rules 2016, r 7.23(2)(b).
3 Rule 7.23(2)(a)(v).
4 Re Hickford [2009] 34 FRNZ 159 (HC).
5 His signed, dated and witnessed consent is annexed (as exhibit “D”) to Ms Graf’s affidavit filed in support of this application.
6 Affidavit of Ms Graf, affirmed on 23 July 2025.
7 Annexed to Ms Graf’s affidavit is a letter from the Registrar-General, Department of Internal Affairs (Births, Deaths, Marriages and Citizenship) certifying that in respect of the estate of Mark Philip Nicklin, a search of the indexes of registers kept in the Registrar-General’s Office has shown there is no record of a Paternity Order/Paternity Declaration/Instrument in his name.
their mother (now deceased) escaped with the children from an abusive relationship with their father in the United Kingdom in the early 1980’s. She says that they had no contact with their father from that time to protect their safety and have no knowledge of his whereabouts. She asks the Court to determine this application without requiring notice be served on the deceased’s father, even if he were found to be still alive.
[14] In a memorandum supporting the application Ms Carr, counsel for Ms Graf, submits that if the father is alive, he would be in his mid-90’s and likely still living somewhere in the United Kingdom.
[15] Ms Carr also explains that she has reviewed “narrative musings” found in the deceased’s belongings which show the deceased’s childhood (along with that of Ms Graf) was psychologically, emotionally, and physically traumatic at the hands of their father. This supports Ms Graf’s evidence that she and the deceased have been long estranged from their father and that the application should be determined without serving notice on him (if alive).
[16] In the circumstances, I am satisfied that it is in the interests of justice that the application proceeds without notice.8
[17]I turn to the merits of the substantive application.
Relevant legal principles
[18] A valid will is defined by s 7 of the Act as one that complies with the technicalities of s 11 or is declared valid under s 14.
[19] The essential requirements of a valid will are set out in s 11. That section provides that a will must be in writing; signed by the will-maker or someone who the will-maker directs to sign on their behalf in their presence; and there must be at least two witnesses.
8 High Court Rules, r 7.46(3)(e).
[20] When a will-maker leaves a final will at the end of their life, it is not always possible to meet the requirements for a valid will set out in s 11. Recognising this practical reality, s 14 prescribes that the High Court may declare a will to be valid where it is satisfied it captures the true testamentary intentions of the will-maker but does not comply with the technicalities of s 11.
[21]Section 14 provides:
14 High Court may declare will valid
(1)This section applies to a document that—
(a)appears to be a will; and
(b)does not comply with section 11; and
(c)came into existence in or out of New Zealand.
(2)The High Court may make an order declaring the document valid, if it is satisfied that the document expresses the deceased person’s testamentary intentions.
(3)The court may consider—
(a)the document; and
(b)evidence on the signing and witnessing of the document; and
(c)evidence on the deceased person’s testamentary intentions; and
(d)evidence of statements made by the deceased person.
[22] A helpful summary in Public Trust v Nirza outlines key principles in this area.9 Relevantly:
[11] An application under s 14 is to be proved on the balance of probabilities.10 As noted by the Court in Re Campbell (deceased), a high proportion of s 14 applications are successful, indicating that “the evidential burden on a s 14 applicant is not subject to a high threshold”.11
[12] Care must be taken in determining whether what is claimed to be an expression of a will-maker’s wishes is genuine, rather than the formal steps taken to implement those intentions.12 Where there is supporting evidence of
9 Public Trust v Nirza [2024] NZHC 3801.
10 Mason v Mason [2022] NZHC 491, [2022] NZFLR 64.
11 Re Campbell (deceased), above n 5, at [17].
12 Swift v Rodgers [2022] NZHC 2543 at [38(a)–(b)].
the will-maker’s clear intentions, those intentions should be given effect over an intestacy.13
Analysis
Does the draft appear to be a will?
[23] I am satisfied that the document appears to be a will. It contains the standard information generally contained in wills, uses language appropriate to and consistent with a will and is expressly described by the deceased as his “will and final testament”. It disposes of his estate, comprising his house and possessions, to the beneficiaries — his two siblings.
Does the document comply with s 11 of the Act?
[24] The document does not satisfy the requirements in s 11 of the Act, because although it is in writing and has been signed by the deceased, it is not attested by two witnesses, each together in the presence of the deceased when signing.
Did the document come into existence in or out of New Zealand?
[25] Given the deceased’s circumstances, the timing and where the document was found, it is more likely than not that it was prepared in New Zealand.
Does the document express the deceased’s testamentary intentions?
[26] The critical question is whether the document expresses the deceased’s person’s testamentary intentions. There is cogent evidence that it does.
[27] The deceased was able to describe his assets (his house and possessions) and gave clear instructions about what he wanted done with them. He gave instructions about the final disposition of his remains (cremation) and stipulated where he would prefer his ashes to be scattered. He made other requests in the document which are also consistent but need not be recounted here.
13 At [38(d)].
[28] Attached to Ms Graf’s supporting affidavit is an email sent to her in the early hours of the morning on the day of her brother’s death. It sets out the deceased’s intentions for his estate administration and instructs Ms Graf to direct emergency services to his address upon receipt of the email. It provides relevant and helpful information in respect to the estate and explains that further “items and documents that will make it much easier to sort out [his] estate” were located in a black case near his bed (found by police on their arrival at the property), including a small “flash drive” also containing all the relevant documents. The email records the deceased’s opinion that after his house is sold, Ms Graf and (their brother) Paul Nicklin will receive a sum in the region of $500,000 each.
[29] Ms Graf deposes that a letter of instructions containing the same information as in the email was found by police when they attended the property on 11 April 2025.14 I consider that the email/letter of instructions conclusively supports the document.
[30] Ms Carr submits that the document expresses the deceased’s testamentary intentions, which include that he did not intend the law of intestacy to apply to the disposal of his property on his death. Reading the detailed instructions in the documents adduced, I concur that is not the intention of the deceased. It is plain from the language and appearance of the document that his intention was that upon his death his estate should go to his two siblings.
[31] There is no reason to suggest the deceased’s position might have shifted prior to his death, as the document was signed only four days earlier. I consider it apparent that the deceased prepared, without the assistance of lawyers, what he thought was a will, called a will, and intended to be a will.
[32] For all these reasons, I am satisfied that validation of the document marked “A” referred to in the affidavit of Ms Graf sworn on 23 July 2025 is appropriate.
14 She says that the letter was passed to her by police on 1 May 2025.
Result
[33] I order that the applicant, Ms Graf, may proceed by way of originating application and without notice to any interested party.
[34] I order under s 14 of the Wills Act 2007, that the document dated 7 April 2025 in the form as it appears at exhibit “A” to the supporting affidavit of Ms Graf, is the valid will of Mark Philip Nicklin.
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Walker J
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