The Court retains an inherent jurisdiction to make decisions about the burial of a deceased person. This applies even where no grant of probate or administration has been issued. (Dayman v Dayman [2024] NSWSC 838 [24]); Brown v Weidig [2023] NSWSC 281 at [29]. Where necessary, the Court issues ancillary or consequential orders to give effect to its decision. The Supreme Court’s inherent jurisdiction arises from the Court’s status as a superior court of record. It is responsible for the administration of justice in NSW (Supreme Court Act 1970 (NSW) ss 22–23). This jurisdiction is not displaced by statute unless Parliament expressly provides otherwise.
The recent authority is Chipizubov v Elias [2025] NSWSC 326 ([12]–[23]). It provides practical guidance. This guidance illustrates the exercise of this jurisdiction resolving disputes of this nature.
Burial disputes often occur during probate or administration proceedings. Yet, the law concerning the disposal of a body occupies a distinct space on the periphery of succession law. It is ancillary to both the protective and probate jurisdictions but is not part of either.
The sensitive and personal nature of burial disputes is acknowledged. The Court recognises that judicially imposed outcomes cause deep distress to grieving families. Thus, the law operates best when there is consensus or acquiescence among those with an interest in the deceased’s remains.
In practice, several principles guide proceedings of this kind:
- Urgency and evidence: Many burial disputes arise urgently. They are addressed in the Equity Duty List. There is often limited opportunity for cross-examination.
- Efficient presentation: Parties should avoid excessive material and focus on information essential to a prompt and dignified resolution.
- Core information needed to inform the Court promptly:
- Who has custody of the body?
- persons with an interest in the dispute;
- available estate assets for funeral expenses;
- any existing rights of interment;
- relevant cultural, spiritual, or personal wishes of the deceased and family;
- details of funeral directors, burial sites, and costs; and
- Any logistical or legal impediments to burial or cremation.
- Avoiding joint appointments: Joint control or co-responsibility between disputing parties is generally discouraged. This is due to the potential for further conflict and delay.
- Independent interim administrator: Appointing an independent practitioner can be the most effective solution. This temporary control manages the body and funeral arrangements. It preserves dignity in challenging situations.
- Funding and powers: The interim administrator should be empowered from the estate. They must manage both burial issues and associated property matters. This includes rights of interment.
- Deferred entitlement disputes: Resolution of Questions concerning who ultimately inherits burial or interment rights after completion of the immediate disposal.
- Cost discipline: Practitioners and parties must keep legal and funeral costs within reasonable bounds.
Recent authorities reaffirm these principles. This includes Chipizubov v Elias [2025] NSWSC 326. The Court has broad discretion to act swiftly. It ensures a respectful and orderly disposal of the deceased’s remains.
Background and Legal Principle
Under the common law, a named executor has the primary right to arrange the disposal of a deceased person’s body. This applies if they are ready, willing, and able of doing so. This requirement is detailed in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693. It is also outlined in Kak v Kak [2020] NSWSC 140 at [15]. In this case, the second to fourth defendants relied on that principle. They asserted that the fourth defendant, as executrix named in the deceased’s Will, had that right.
13 May 2025 – The Will
The deceased executed a formal will dated 13 May 2025. The document appoints the fourth defendant as executrix. It also expresses a wish to be buried in Sydney. These factors initially supported burial in Sydney according with her will and her executrix’s wishes.
Subsequent Doubts and Family Conflict
Although the Supreme Court had not granted probate to the fourth defendant, the plaintiff challenged the Will’s validity. The attesting witnesses’ evidence confirmed the Will’s proper execution. The plaintiff, nevertheless, argued that the deceased later wished to replace the executrix and change her burial preference.
The deceased was hospitalised from 12 May to 4 June 2025, after which she required ongoing care. In July 2025, a family dispute arose involving the fourth defendant’s husband and the deceased’s car. Thereafter, relations between the deceased and the fourth defendant deteriorated. The plaintiff and Ms Rusila Tamoi primarily took care of the deceased.
2023 – Earlier “Exercise Book” Will
In 2023, the deceased had handwritten an informal “My Will” entry in an exercise book, identifying her daughters and grandchildren. In May 2025, Ms Tamoi rediscovered this notebook. After the July 2025 dispute, the deceased reportedly gave the plaintiff a specific instruction. The instruction was to “cross out Tirisa’s name [the fourth defendant’s middle name] and put your name there, Georgia.” The deceased intended to substitute the plaintiff as executrix.
31 August 2025 – The Alteration
On the day the deceased died, the plaintiff altered the exercise book. She crossed out names and inserted her own in Fijian. This insertion remained untranslated. Brereton J found the alteration did not meet execution requirements under Part 2.1 of the Succession Act 2006 (NSW).
The plaintiff submitted a claim under s 8 of the Succession Act. They argued that the alteration should be treated as an informal amendment to the will dated 13 May 2025. Brereton J rejected this. He held that s 8 was not engaged. This was because the amendment related to an earlier, invalid document. It was neither an alteration nor a revocation of the later formal will.
Status of Proceedings
The parties later agreed that the proceedings concerned only burial arrangements, not probate or the appointment of an executor. Nonetheless, the defendants maintained that the fourth defendant’s status as executrix entitled her to control the burial. The executrix had not applied for a grant of probate but intended to.
Court’s Approach
For the burial dispute, Brereton J accepted that the fourth defendant was the executrix. Ordinarily, she would have the right to arrange the burial. The deceased had apparently changed her mind about the executrix. She also changed her burial wishes. Thus, Brereton J considered departing from the traditional rule. Based on Brown v Weidig [2023] NSWSC 281, his honour recognised a modern shift away from rights-based jurisprudence. It moves towards the management of problems in the absence of community consensus.
Relevant Factors Considered
In exercising discretion, Brereton J applied the factors from Weidig at [38]:
- logistical and financial arrangements for the burial;
- the deceased’s wishes;
- community and family preferences;
- cultural and spiritual considerations; and
- access for mourners.
Wishes of the Deceased
The deceased wanted to be buried in Sydney, near her children and grandchildren. She made her Will on 13 May 2025. She cited concerns about the upkeep of the cemetery in her Fijian village. The fourth defendant secured a burial plot for her in the Pacific Section of Forest Lawn Memorial Park. This location is in Leppington and is near the graves of family members.
Later, during the last two months of her life, there was family estrangement. Afterward, the deceased expressed a wish to the plaintiff. She wanted burial in Nakini village, Fiji. This location is near her parents and brother. The second defendant was the deceased’s eldest son. He disputed a decisive change of mind. He argued that his mother would have followed Fijian custom. She would have informed him, as the eldest son, if she had done so.
Brereton J found that the deceased’s burial preferences shifted over time; initially favouring Sydney. Later, considering Fiji. But neither view represented a lifelong or consistently expressed wish.
Cultural Factors
The deceased maintained strong cultural ties to Nakini village. Her late father had served as Chief there. She regularly visited and supported the community. Yet, the deceased also had deep roots in Sydney. She lived there for over 35 years. She was active in the church.
Fijian custom required the Chief’s permission for burial in the village, after blessings from the deceased’s eldest son and brother. Yet, neither was given, and the deceased’s brother expressly refused to ask for burial approval. The Chief initially indicated acceptance of the plaintiff’s request. But, he later clarified that formal approval only be given upon the brother’s request; effectively blocking burial in Nakini.
Creating a significant practical barrier: the Fijian burial only continue with the brother’s cooperation, which was not forthcoming.
Additionally, family members would need to obtain the Chief’s permission. They would also have to make annual offerings to visit the grave. This process would be financially burdensome. One reason the deceased’s earlier preference for a Sydney burial was to spare her family those costs.
Logistical Considerations
A burial plot at Forest Lawn Memorial Park in Sydney was already reserved. It was also paid for. Arrangements continue without delay. The elapsed time since death made prompt local interment practical. The Fijian custom of early burial ensured it was culturally respectful. The cemetery was near the deceased’s family and community in Australia.
Summary of Outcome
The Court accepted that:
- The 13 May 2025 will was valid and named the fourth defendant as executrix.
- The deceased’s later expressions of burial in Fiji were genuine but not possible under Fijian custom.
- Given the available plot, funding, and proximity to family, burial in Sydney was practical. It aligned with dignity and the deceased’s earlier stated intentions.
Findings on Wishes and Cultural Considerations
The Court found that the deceased had initially intended her burial in Sydney. But, she appeared to reconsider this in her final weeks. She expressed a desire for burial in Nakini village, Fiji, near her parents and brother.
However, Fijian custom required the Chief’s permission, sought by the deceased’s brother. The evidence showed he refused to make the request, and the Chief would not grant permission without it. As such, burial in Nakini village was neither practical nor culturally acceptable.
The Court accepted that burial in Sydney, at Forest Lawn Memorial Park, Leppington, was consistent with her earlier expressed wishes. Other family members were interred there. It also aligned with logistical realities. It also respected the dignity of the deceased and the unity of her local family.
Court’s Reasoning and Outcome
The Court acknowledged the plaintiff’s sincerity in wanting to follow her mother’s later-stated wish for burial in Fiji. Nevertheless, it found that:
- The deceased’s other children did not share that view.
- In May 2025, she had firmly preferred a Sydney burial.
- The cultural and practical impediments made burial in Fiji unworkable.
- Pursuing that choice risked undermining the dignity of the deceased if the village ultimately refused the burial.
The Court held that it was appropriate for the fourth defendant, as executrix, to have carriage of the burial. The burial was to take place at Forest Lawn Memorial Park, Leppington. The funeral director was permitted to release the body to her.
Because the plaintiff was the only party seeking relief, Brereton J dismissed the Amended Summons.
Costs and Orders
The defendants sought costs. The Court recognised that the plaintiff had acted out of genuine concern to fulfill her mother’s perceived wishes. Thus, she should not be penalised.
Orders made:
- Dismiss the Amended Summons.
- Recovery of the second to fourth defendants’ costs from the estate of Nanise Tavakayaca Vulagi. After payment of burial and related expenses.
- Otherwise, there is no order as to costs.
- Liberty to apply on 24 hours’ notice.
Key Principles Illustrated
- The executor’s prima facie right of burial remains the starting point, but yield to practical or cultural realities.
- Exercise of the Court’s inherent jurisdiction to resolve disputes over burial where no consensus exists.
- A shift away from strict rights-based reasoning toward pragmatic, dignity-focused decision-making is transparent (Brown v Weidig[2023] NSWSC 281).
- Cultural and familial considerations are relevant but not determinative where they conflict with practical realities or community obligations.
- Costs in such matters are often borne by the estate, reflecting the compassionate context of family burial disputes