Disputes over the disposal of a deceased person’s body occur at the uneasy intersection of family conflict. They also involve cultural and religious practices and the Court’s protective jurisdiction. Unlike probate matters—where formal grant processes, evidentiary rules and timelines give structure—burial disputes demand rapid judicial intervention. Decisions often must be made within hours or days of the death, with incomplete information and heightened emotion.
The Court’s immediate task in these cases is pragmatic: decide who holds the body. It must clarify the deceased’s wishes, if any exist. The Court ensures that no irreversible steps are taken. It then stabilizes the situation long enough to hear competing claims. This typically leads to interlocutory orders restraining disposal, embalming or preparation pending further inquiry.
The Court must apply discretionary principles in situations where a party seeks access to the deceased’s body. These principles come from cases like Brown v Weidig [2023] NSWSC 281. They also stem from Chipizubov v Elias [2025] NSWSC 326 and Dayman v Dayman [2024] NSWSC 838. These decisions emphasise several non-exhaustive factors. These include the deceased’s known wishes. They involve cultural, spiritual and religious practices, and consider the interests of family and community members. Logistical realities also play a part, including the location of the body, funeral arrangements, and timing. Additionally, there is an overarching need to preserve dignity and avoid precipitate action.
A critical theme in the jurisprudence is that the deceased’s expressed wishes—while not legally binding—carry considerable weight. Where those wishes clearly entrust funeral arrangements to a particular person, the Court respects these choices. If preferences specify no open casket, the Court is slow to override them. The Court does not allow physical contact unless compelling circumstances justify doing so.
The Matter
Mackie v Tedesco [2025] NSWSC 1345 illustrates this balancing exercise. The plaintiff sought both open-casket access and the ability to touch the body. The defendants resisted because of the deceased’s stated preferences. The Court ultimately permitted a limited viewing. This was despite the deceased’s dislike of open-casket practices. Nevertheless, it declined to allow physical contact. Allowing physical contact would have directly contravened her recorded wishes.
The judgment also reflects a recurring reality in burial litigation. The law remains blunt when trying to mediate family relationships in crisis. These disputes are often deeply personal, shaped by grief, guilt, estrangement, and competing narratives of closeness. Yet the Court must impose clear, enforceable orders that prioritise dignity, practicality and fairness within narrow timeframes.
Burial disputes are becoming more common. This is especially true where family fragmentation, second marriages, and multicultural practices intersect. The need for early communication and clear expression of funeral preferences will continue to grow. For practitioners, the case underscores the need for swift action. Practitioners must also offer reliable evidence of the deceased’s wishes. Proposals should be realistic and sensitive, accommodating both logistical constraints and emotional realities.
Background
In the early evening last Friday, 95-year-old Giuseppina Tedesco (the deceased) died at Scalabrini Village in Allambie Heights. Giuseppina was deeply religious. Her name is derived from the Hebrew name Yosef, meaning “God will increase.” She was recognised by her son Domenico (the first defendant) as a source of strength. He especially felt this after the death of his and his wife Christina’s newborn son in 2006.
The deceased leaves behind five children and several grandchildren, including Vanessa Mackie (the plaintiff). Some family conflict quickly emerged after her passing. Shortly after being notified, the plaintiff expected further communication. It did not occur. She feared the denial of a final private visit with her grandmother before preparations for burial began. She thought the first defendant was the executor. She applied to the Court for urgent relief within 48 hours of the death.
It later became clear that the executor was actually solicitor Ronald Gorick (the second defendant/executor). The Court acted quickly because the situation developed before there was time to prove the Will. It made representative orders to guarantee any outcome would bind the estate.
Burial Dispute
Like many urgent burial disputes, the Court initially received only fragmented information. Meek J compared the evolving picture to a scratch-off image. It gradually revealed the deceased’s wishes as well as family dynamics as more details emerged. There were three court appearances within four business days. A memorial service was scheduled for Monday. The burial was to follow in the family vault. Catholic tradition often includes an open-casket rosary. Although, the first defendant explained that this would not occur. This decision was due to the deceased’s express wish not to be viewed after death.
Given time pressures and limited evidence—much of it untested—the Court encouraged the parties to reach an agreement. Attempts to do so, though, failed. Meek J ultimately had to decide the urgent question of whether the plaintiff should have a private farewell before interment. The Court managed evidence under significant time constraints. The plaintiff provided sworn oral evidence to verify an otherwise unsworn affidavit. They tendered documents without time to prepare a full affidavit. The first defendant was briefly examined and cross-examined. Despite minor qualifications, the Court accepted his evidence on the key issues.
The plaintiff also sought broader final relief. Nonetheless, the Court confined itself to the immediate interlocutory issue. This was her plea for private access to the body. Other issues, including requests for information and records, were adjourned for later determination. The plaintiff’s motion sought orders preserving the body from preparation. It also sought permission for her to have up to 90 minutes alone with her grandmother. Yet, by the time of the hearing, it emerged that embalming had already occurred. Meek J also clarified that the plaintiff wished to be permitted to touch the body during her visit.
In her notice of motion, the plaintiff sought three main orders. First, she asked the Court to preserve the deceased’s body. She wanted to restrain any embalming, washing, dressing, cosmetic work, invasive procedures, cremation, or other preparation. This was until 6:00 pm on 11 November 2025. Second, she sought up to 90 minutes of private access to her grandmother’s body. This access was to be without any relatives or other persons. It had to occur within 24 hours and without audio or video recording. Third, she asked that the first defendant not attend the funeral home during her visit. She also requested that anyone acting on his behalf be absent.
Yet, it later emerged that the funeral director had embalmed the deceased the prior day. This act rendered part of the preservation relief moot. There was also an extended discussion about whether the plaintiff wished to touch the body physically. She confirmed that she did, though the executor debated her intentions (hugging or kissing). It was clear she ultimately sought the Court’s permission to do so.
Outcome of Urgent Relief
The Court determined that the plaintiff should be allowed a brief, private opportunity the next day. She can be in the presence of her grandmother’s body, accompanied only by funeral staff. Other family members are not allowed. A limited form of open-casket access would be permitted. Yet, the Court declined to authorise any physical contact with the body.
Relevant Principles
Meek J referred to earlier authorities. These include Brown v Weidig [2023] NSWSC 281. Another relevant case is Chipizubov v Elias [2025] NSWSC 326. Lastly, Dayman v Dayman [2024] NSWSC 838 is also included. These cases guide urgent burial-related applications. These cases emphasise the Court’s preliminary tasks. The Court gathers basic information about the deceased and the family. It identifies who holds the body. It ensures that no irreversible steps, including disposal, occur before Meek J hears competing. Discretionary factors include the deceased’s wishes. Cultural and spiritual considerations are also important. Community and family views matter. The Court considers practical logistics. Ensuring accessible opportunities for mourning is essential.
Family History
Although there was some dispute, Meek J accepted the core facts of the family history.
The deceased, mother of five children, was deeply committed to her Catholic faith. She moved to Scalabrini Village after a mini-stroke in late 2020, and the first defendant visited her often. The executor contested the plaintiff’s submission of a close bond with the deceased. The Court did not resolve this issue for the interlocutory hearing.
Initially, there was incomplete information about the body’s location. The Court eventually established that the deceased was in the care of O’Hare Funeral Directors. The deceased had been embalmed, with dressing to occur later that day.
Testamentary and Funeral Wishes
The deceased executed a 1996 Will. There was also a 2004 codicil appointing the second defendant as executor. The solicitor acted as executor. The deceased also signed written directions in 2005. Further, she signed more in 2013. These specified
- the first defendant was to handle funeral arrangements, as he had done for her late husband.
- no speeches by her children but allowed grandchildren to speak.
- specific instructions about her clothing, rosary beads, funeral director, music, and photos.
- Importantly, she wanted people to remember her as she was in life and did not want an open casket.
According to the first defendant, she had also said she did not want anyone touching or kissing her after death. These wishes were central to the Court’s decision not to allow physical contact.
Parties’ Positions
Affidavit evidence established each party’s positions, which Meek J clarified during the hearing.
Executor’s position: The executor (the second defendant) relied on the deceased’s 2005 written direction, accepting that the first defendant was nominated by the deceased to be solely responsible for organising her funeral, which supports the first defendant. They encourage taking reasonable steps to arrange all aspects of the funeral, including any viewing arrangements.
Joint proposal of the defendants: The defendants sent an email the day before the hearing. In it, they proposed a compromise;
- A private farewell in O’Hare’s chapel at 11:00 am on 14 November 2025 would last for up to 60 minutes.
- There would be no relatives present.
- A staff member from O’Hare is to remain in the chapel throughout.
- An open casket.
- No recording equipment.
- No physicalcontact or interference with the body.
The plaintiff rejected this proposal.
Plaintiff’s response:
Privacy: No relatives and no staff in the room during her visit. Exceptions were a brief entry at the beginning and end.
Casket and timing: Open casket; visit to occur before any body preparation.
No recording: The plaintiff agreed to bring no devices and not to record anything.
Physical contact: insisted on being allowed to respectful physical contact with her grandmother, as she had in life.
Wishes of the deceased: disputed the first defendant’s assertion that the deceased did not want an open casket. No written instructions were produced. The plaintiff believed the deceased sought only a private farewell, not a public funeral viewing.
The defendants were asked to confirm by 5:30 pm. If the parties reached no agreement, she would return to Court.
Court’s Determination
Meek J applied the principles from Chipizubov v Elias, Dayman v Dayman, and Brown v Weidig, taking into consideration the factors identified by Lindsay J in Weidig. The deceased’s clear written wishes entrusted funeral arrangements to the first defendant. Additionally, there was the first defendant’s own evidence of the deceased’s desire not to be viewed or touched after death. The plaintiff expressed a strong wish to see the body and to have physical contact with it. The court also considered the need for dignity in interment and respect for the deceased’s stated preferences, including the logistical availability of the funeral chapel and staff, and the pressing time constraints.
Meek J identified two core issues dividing the parties.
- The first issue is whether there should be an open casket.
- The second issue is whether the plaintiff should be permitted to touch the deceased’s body.
His Honour acknowledged the profound importance of physical presence and touch in human relationships, especially at the end of life. He also stressed that the deceased’s expressed wishes must be respected unless outweighed by compelling considerations.
In Chipizubov v Elias [2025] NSWSC 326_, Meek J provides a clear and practical reminder of the legal framework governing burial disputes—an area of law that sits at the intersection of the probate and protective jurisdictions but is not fully contained in either.
His Honour reiterates that the Court’s inherent jurisdiction allows it to act urgently and flexibly, including before any grant of probate or administration has issued, to ensure a timely and respectful disposition of the body.
At [12]–[23], Meek J emphasises that these disputes arise in circumstances of acute family grief, often with limited notice and escalating tension. As such, courts and practitioners must prioritise processes that minimise conflict and delay.
His Honour identifies several practical principles:
Consensus where possible: Families should be encouraged to reach agreement, with litigation treated as a last resort.
Focused and proportionate evidence: Only material genuinely relevant to the immediate question of disposal should be filed, avoiding unnecessary accusations or collateral disputes.
Early identification of core facts: Key non-contentious information—custody of the body, the immediate stakeholders, funding arrangements, cultural or religious practices, and the practical requirements of burial or cremation—should be provided upfront to assist the Court in making urgent, dignified orders.
Joint control is seldom workable: Meek J confirms that shared decision-making rarely resolves conflict and usually compounds it; the Court will generally prefer a single point of authority.
Independent appointments: Where family dispute is entrenched, appointing an independent interim administrator is often the most effective means of ensuring orderly arrangements, reducing stress, and safeguarding the dignity of the deceased.
Finally, His Honour underscores the need for proportionality in costs and warns against turning such profoundly personal disputes into extended litigation. The Court’s role is to facilitate a practical, compassionate resolution—not to adjudicate broader family grievances.
Overall, Chipizubov v Elias offers a measured, practitioner-friendly roadmap for navigating one of the most delicate areas of succession practice: the urgent and humane disposition of a person’s remains.
Outcome
In Mackie v Tedesco [2025] NSWSC 1345, Meek J allowed the plaintiff a private farewell with an open casket, despite the deceased’s stated wish not to be viewed. However, his Honour refused to allow physical contact, in accordance with those exact wishes. Given the family’s disagreement, His Honour considered it necessary to impose precise conditions to guarantee clarity, despite the plaintiff’s disappointment.
His Honour expressed sympathy for the family’s grief and acknowledged the deceased as a cherished and remarkable woman whose memory would endure. He made the following orders:
- Leave to file affidavits: the Defendants can file the affidavits of the first defendant sworn on 13 November 2025. They are also permitted to file the affidavit of Krishneel Nath, sworn 13 November 2025. Each affidavit is initialled by Meek J. and lodged with the Court papers.
- Scope of relief noted: the Plaintiff’s Notice of Motion dated 10 November 2025 seeks broader final relief than that originally claimed in the Summons filed the same day.
- Leave to file amended Summons: the Plaintiff must file and serve an amended summons by 5 pm on 27 November 2025nto include the additional relief sought in the Notice of Motion. Applies to the extent not included in the existing Summons.
- Separate determination of Prayer 2: an immediate hearing for the relief sought in Prayer 2 of the Summons to address only this specific matter. It is separate from any final relief sought in the Notice of Motion.
Further listing
The remainder of the proceedings are stood over to the Equity Registrar.
- Any outstanding relief is also stood over to the Equity Registrar on 4 December 2025.
- Private farewell attendance: The Defendants are directed to arrange for the funeral director, Rosa Peronasc of O’Hare Funeral Directors to allow the Plaintiff to attend a private farewell at O’Hare’s Chapel in Norton Street, Leichhardt. No other relatives or persons are to be there, apart from Ms Peronasc or another nominated staff member.
- The private farewell must meet specific conditions:
- It is to last no more than 60 minutes.
- It must occur at 11 am on Friday, 14 November 2025, a time convenient for the Plaintiff.
- The farewell must take place under the supervision of Ms Peronasc.
- A designated staff member must be there at all times.
- The casket must be open for the duration of the viewing.
- No photographic or video recording is allowed.
- The Plaintiff must not make physical contact with the deceased’s body.
Termination of attendance for non-compliance
- The Plaintiff must not touch the body of the deceased. If they try to do so, the Funeral Director will stop the viewing at once. Similarly, the Plaintiff is prohibited from taking a recording.
- Liberty to apply
- Any party can apply to the Court on short notice. Including the Funeral Director. They can seek further or ancillary orders needed to give effect to these directions.
Costs
The Court reserved Questions of costs.
Conclusion
Importantly, courts and practitioners must prioritise processes that minimise conflict and delay as burial disputes arise in circumstances of acute family grief, often with limited notice and escalating tension.
Modern burial disputes sit at the edges of probate, guided by familiar succession principles but no longer constrained by rigid rights-based rules. Courts increasingly recognise that, in a multicultural society, disputes about the disposal of a body are less about strict legal entitlements and more about managing real-world problems when families cannot agree.
In straightforward cases, probate concepts offer a sensible roadmap. A Will—often naming an executor even if it says little else—or the statutory intestacy order provides an objective and predictable hierarchy for identifying who should take responsibility for protecting funeral homes and other custodians from criticism, while also offering a clear path to urgent judicial directions if competing claims arise. It also has the practical advantage of aligning decision-making with the person most likely to control the estate funds needed for funeral arrangements.
But convenience is not compulsion. The Court’s role is ultimately to ensure that burial occurs in a timely, orderly and dignified way, responsive to the needs of the deceased’s family and communities. That requires flexibility. As patterns of family, culture and end-of-life choices evolve, so too must the Court’s approach. The guiding principle remains constant: practical wisdom, not rigid doctrine, should shape decisions in this uniquely sensitive area of succession practice.