Vulagi v Kennerally trading as Funeral Services Pty Ltd

Legislation Cited: Succession Act 2006 (NSW)

Cases Cited: Brown v Weidig [2023] NSWSC 281
Chipizubov v Elias [2025] NSWSC 326
Dayman v Dayman [2024] NSWSC 838
Kak v Kak [2020] NSWSC 140
Smith v Tamworth City Council (1997) 41 NSWLR 680

Texts Cited: N.A.

Category: Principal judgment

Parties: Georgia Christian Vulagi (plaintiff)
Gerald Kennerally trading as Funeral Services Pty Ltd (first defendant)
Laitia Butukiviti Tuvakaikoya (second defendant)
Fobian Lui’siana Gaga Randall (third defendant)
Timaleti Tirisa Lotawa (fourth defendant)

Representation: Counsel:
D Gray (plaintiff)
B Balasubramanian (solicitor) (second to fourth defendants)
Solicitors:
Carroll & O’Dea Lawyers (plaintiff)
Marsdens Law Group (second to fourth defendants)

File Number(s): 2025/355662

Publication restriction: N.A.

JUDGMENT

1. Nanise Tavakayaca Vulagi died on 31 August 2025. She was 75. She was born in Fiji. She had lived in Sydney since about 1988. She had 5 children. Throughout her life, Mrs Vulagi retained a close connection with her village in Fiji, called Nakini village. She also has strong ties to her community in Sydney.

2. The plaintiff is one of Mrs Vulagi’s daughters. She seeks relief that will give effect to what she contends to have been the expressed wishes of Mrs Vulagi about how to deal with her remains. The plaintiff contends that in her final months, Mrs Vulagi expressed a wish that her body be returned to Nakini village to be buried.

3. The first defendant is a funeral service company. It holds Mrs Vulagi’s remains. It did not participate in the hearing.

4. The second to fourth defendants are three of Mrs Vulagi’s other children. They all live in Sydney. They contend that their mother’s body should be buried in Sydney. They say that is what Mrs Vulagi wished.

5. As is commonly the case with burial disputes, this matter came on urgently. It was heard by me in the duty list. The plaintiff’s Amended Summons seeks wide-ranging relief. However, at the hearing, the only issue that emerged for determination was whether the plaintiff or the fourth defendant should have carriage of Mrs Vulagi’s remains. That is the issue that I address in these reasons.

6. For the reasons in this judgment, I will dismiss the Amended Summons. The fourth defendant, who is the executrix, will have the right to arrange for the burial. She intends for Mrs Vulagi to be buried at the Forest Lawn Memorial Park at Leppington in Sydney.

The Court’s Jurisdiction

7. The Court has an inherent jurisdiction, without a grant of probate, to deal with the burial of a deceased person: see Dayman v Dayman [2024] NSWSC 838 at [24]. There may need to be ancillary or consequential orders to give effect to my decision. The recent decision of Meek J in Chipizubov v Elias [2025] NSWSC 326 at [12]-[23] provides helpful practical guidance.

Does the fourth defendant have rights as a named executrix?

8. The starting point is that a named executor or executrix has the right to arrange for the disposition of a body if that person is ready, willing and able to do so: Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693; Kak v Kak [2020] NSWSC 140 at [15]. The second to fourth defendants contend that the fourth defendant is the named executrix and has this right.

9. Mrs Vulagi prepared a will dated 13 May 2025. That document appoints the fourth defendant as the executrix. It also expresses a wish to buried in Sydney. These matters point to a conclusion that Mrs Vulagi should be buried in Sydney, consistently with her wishes and the wishes of her executrix.

10. There has been no grant of probate in respect of the will dated 13 May 2025. The plaintiff pointed to some matters that, she contended, cast doubt on the validity of the will. There is unchallenged evidence from the witnesses to the will who explain the circumstances in which the will came to be made. On the evidence on this application, I accept that the 13 May 2025 will is Mrs Vulagi’s will. There was an argument that it was subsequently altered. I deal with that contention below.

11. The plaintiff contended that there were circumstances that existed in this case which invoked the Court’s discretion to depart from the rule that the named executrix (the fourth defendant) had the right to dispose of Mrs Vulagi’s remains. The second to fourth defendants did not contend that the Court did not have a discretion to, in effect, take away the fourth defendant’s rights and confer them instead on the plaintiff, but they submitted I should not do so in this case.

12. There was evidence about two related and relevant matters concerning the terms of the 13 May 2025 will. The plaintiff contends that after that will was made, Mrs Vulagi took steps to replace the fourth defendant as executrix and also changed her mind about where she wished to be buried. The plaintiff submitted that whatever Mrs Vulagi’s intentions and wishes may have been in May 2025, before she died Mrs Vulagi had expressed a desire to be buried in Nakini village.

13. Mrs Vulagi was admitted to hospital on about 12 May 2025 and was a patient until 4 June 2025. She required care for the rest of her life. There was unchallenged evidence that there was an argument among family members in July 2025, apparently involving the refusal by the fourth defendant’s husband to return Mrs Vulagi’s car, and after that time there was little or no contact between Mrs Vulagi and the fourth defendant. There is evidence about other disputes among family members. Mrs Vulagi’s principal carers in the final months of her life included the plaintiff and Ms Rusila Tamoi.

14. Sometime in 2023, Mrs Vulagi told the plaintiff (in the presence of Ms Tamoi) that she had written a will and life story. In May 2025, Ms Tamoi found an exercise book in Mrs Vulagi’s bedside table while Ms Tamoi was looking for an iron. The text in the book is partly in English and partly in Fijian and apparently is in the handwriting of Mrs Vulagi. There is an entry dated 3 September 2023 with a heading “My Will”. The entry appears to identify Mrs Vulagi’s 4 daughters and 2 grandchildren as persons “entitled”. The balance of the entry is written in Fijian and there is no translation in evidence.

15. Ms Tamoi gave evidence that after the argument in July 2025, Mrs Vulagi said to the plaintiff: “You cross out Tirisa’s name [i.e. the fourth defendant] and put your name there Georgia [i.e. the plaintiff]”. It appears that at this time the plaintiff and Ms Tamoi had the exercise book. It does not appear that either of them was aware of the 13 May 2025 will and they were proceeding on the basis that the entry in the exercise book was Mrs Vulagi’s will. The plaintiff’s evidence, although put with some imprecision, is that Mrs Vulagi asked her on two separate occasions, to take “Tirisa’s” name off. Tirisa is the fourth defendant’s middle name.

16. The evidence indicates that on 31 August 2025, before but on the day Mrs Vulagi died, the plaintiff made an alteration to the entry in the exercise book which is headed “My Will”. She struck through words, which appear to read “Georgia Kei Tirisa”, and inserted her own name. However, the paragraph is written in Fijian and I am not prepared to draw any conclusions about the effect of the amendment when the text is not English and has not been translated.

17. The second to fourth defendants submitted that Mrs Vulagi and Ms Tamoi are in a romantic relationship and, for that reason, I should accord limited weight to the evidence of Ms Tamoi. The plaintiff denied the relationship and gave evidence that, until recently, there was an apprehended violence order against Ms Tamoi, which required her to stay more than 100m from the plaintiff. Ms Tamoi was not cross-examined. I reject the submission that the plaintiff and Ms Tamoi are in a romantic relationship and I see no reason to give limited weight to Ms Tamoi’s unchallenged evidence.

18. The altered page in the exercise book was not executed in accordance with Part 2.1 of the Succession Act 2006 (NSW). The plaintiff submits that the Court may dispense with those requirements and accept the document as an alteration to Mrs Vulagi’s will, in accordance with section 8 of the Succession Act. This section relevantly provides:

(1) This section applies to a document, or part of a document, that—

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms—

(a) the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to—

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

…

As I understand it, the alteration is said to be to the 13 May 2025 will.

19. I do not accept that section 8 is engaged. That is because the alteration was not an alteration to Mrs Vulagi’s will, but to another, earlier document. The earlier document is not a valid will and, even if it was, the 13 May 2025 will revoked any earlier will. Moreover, as I have noted, given that the relevant part of the 3 September 2023 document is written in Fijian and has not been translated, I am not prepared to draw any conclusions about the effect of the alteration.

20. In a joint communication from the parties after oral argument, the parties contended that “[t]hese proceedings are limited to the question of the burial of the deceased and it is not necessary for the Court to determine who the executor should be, nor to appoint an executor”. However, the second to fourth defendants subsequently confirmed that their primary submission is that the fourth defendant’s status as executrix means she is entitled to have carriage of disposal of the body.

21. There has been no grant of probate in respect of the 13 May 2025 will. The fourth defendant submitted that the nature of the estate means that it is not necessary to apply for probate, but she has indicated that she does intend to seek a grant of probate.

22. I accept for the purposes of this application that the fourth defendant is the executrix of Mrs Vulagi’s will and, if willing and able (which is not in contest), would usually have the right to arrange the burial. However, I also accept that Mrs Vulagi had expressed a desire for the fourth defendant to be removed as executrix and that she wished for the plaintiff to be the executrix. In those circumstances, I propose to consider and take into account other factors in coming to a decision about who should have the right to arrange the burial of Mrs Vulagi, in order to determine whether to depart from the traditional common law approach, which would confer upon the fourth defendant the right to arrange the burial. I also recognise what Lindsay J described in Brown v Weidig [2023] NSWSC 281 at [56] as the “shift away from rights-based jurisprudence towards the management of problems in the absence of consensus within a deceased person’s community.”

23. Both parties referred to the factors identified by Lindsay J in Brown v Weidig at [38]:

Ultimately, in the absence of legislation governing the outcome of a case, the Court is required, in the determination of a dispute as to who has carriage of disposal of a body, to exercise a discretion taking into account a range of factors (depending upon the particular circumstances of the case and unable, prudently, to be stated exhaustively in the abstract) that may include:

(a) the logistics and available funding for disposal of the body;

(b) the wishes or preferences of the deceased, if known;

(c) the wishes or preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family);

(d) any cultural or spiritual factors material to how the deceased lived life; and

(e) the accessibility of the deceased’s mortal remains to those who seek to mourn a death or to remember.

I have considered these matters in so far as they are relevant and material in this case. Set out below are the salient factors that I consider arise in this case.

The wishes or preferences of the deceased

24. The evidence from the second to fourth defendants and Mrs Vulagi’s sister (who was a witness to her 13 May 2025 will) is that in May 2025, at about the time Mrs Vulagi prepared her will of 13 May 2025, she said that she wanted to be buried at the cemetery in Leppington, Sydney, including because it was close to her children and grandchildren. There is evidence that she said she did not want to be buried in Nakini, including because the cemetery there would not be well-kept and her children, grandchildren and great grandchildren were in Sydney.

25. In May 2025, the fourth defendant chose a plot for Mrs Vulagi in the Pacific Section of the Forest Lawn Memorial Park at Leppington, which is the same section where some of her family and friends are buried. The fourth defendant’s evidence was that she chose a plot next to the footpath so her mother could see who was coming towards her and so gatherers had more space to assemble, it being part of Fijian custom for persons to attend gravesites to pay their respects. A deposit was paid from money raised from family members (not including the plaintiff). The plaintiff’s evidence is that when her mother learned that the steps had been taken to secure a plot, she was angry, including because “they were spending my money without my permission”. It does not appear, however, that Mrs Vulagi’s money was used.

26. The evidence from the plaintiff and Ms Tamoi, which I accept, is that Mrs Vulagi said to each of them, in the last 2 months of her life (when she was unwell and dying) that she wished to be buried in Fiji at Nakini village with her mother, father and brother. I accept she said on more than one occasion that she wanted to be buried in Fiji at Nakini village.

27. The second defendant’s evidence is that his mother had made it very clear to him that she wanted to be buried in Sydney and holds the view that if she had changed her mind in some definite way she would, consistently with Fijian custom, have expressed that view to him as her eldest son. This is a reason to consider that Mrs Vulagi’s decision about where she wished to be buried had not definitely changed.

28. By way of summary, at the time Mrs Vulagi prepared her will of 13 May 2025, it was her wish to be buried in Sydney at the cemetery in Leppington, for reasons including her wish to be close to her living descendants. In about July 2025, when she was approaching her death and there had been a falling out with some of her family in Australia, she seems to have changed her mind, or at least had some reservations, and said she wished to be buried in Fiji at Nakini village. It is not the case that she had held a lifelong or long wish to be buried either in Sydney or Fiji.

Cultural considerations

29. Mrs Vulagi retained a strong cultural association with Nakini village. The plaintiff’s evidence is that her mother was a woman of rank in the village because her father was once the Chief of the village. Mrs Vulagi visited regularly and contributed financially to the village. She has siblings living in Fiji, but none live in Nakini village. Her nephew and his family live in the village.

30. Mrs Vulagi had also developed strong local ties in Sydney. She was an active member of the Campbelltown Uniting Church. Her children, grandchildren and great grandchildren are in Sydney.

31. There is a strong Fijian cultural practice associated with burial. The plaintiff’s evidence is that in Fijian culture, people are buried in their village and that the community and family return every year to look after the graves. She is worried that if Mrs Vulagi is not buried in Nakini village, she will never find peace.

32. There is another aspect of Fijian culture that I consider to be of particular significance in this case. The evidence of cultural practice in Fiji is that a number of steps would need to be taken before Mrs Vulagi could be buried in Nakini village. The first is that it requires the blessing of Mrs Vulagi’s eldest son, the second defendant. He has not given that blessing and does not propose to do so. If he gave that blessing, he would then need to seek the blessing of the elder generation, which in this case could only come from Mrs Vulagi’s brother. The second defendant’s evidence is that Mrs Vulagi’s brother has made it very clear that he would not give that blessing if asked. If he did give that blessing, only he could ask the Chief of Nakini village for permission for the burial to take place.

33. The plaintiff’s evidence is that she contacted the Chief and made a request for Mrs Vulagi to be buried in Nakini village. It appears that on 6 October 2025, the Chief wrote to the plaintiff stating: “I have accepted your request”. He also asked for the children to discuss and celebrate the deceased’s burial in a respectful and courteous way. The plaintiff thanked the Chief and asked if her uncle, Mrs Vulagi’s brother, had come to see him.

34. However, on 16 October 2025, the Chief sent a message to the second defendant. His message suggests that he had understood that Mrs Vulagi had already been buried. The message indicates that he will only take action after he speaks with Mrs Vulagi’s brother. This suggests that while the Chief had indicated to the plaintiff that Mrs Vulagi could be buried at Nakini village, the position most recently articulated is that permission will only be granted if the request comes from Mrs Vulagi’s brother. This evidence is consistent with the evidence given by the second defendant about cultural requirements in Fiji about burial. The evidence is that Mrs Vugali’s brother does not intend to speak with the Chief about his sister’s burial.

35. Thus, the evidence before me indicates that there is at least a strong risk that any desire on the part of the plaintiff or Mrs Vulagi for her body to be buried in Fiji cannot be fulfilled. That is because it cannot occur without the permission of the Chief and that permission will not be granted, absent a request made by Mrs Vulagi’s brother, and no request will be made. This is a decisive consideration.

36. There is also evidence that there is a cultural tradition for family members to ask permission from the Chief to visit the grave once per year. Those attending are required to make an offering to the Chief. The financial position of Mrs Vulagi’s children, being the second to fourth defendants, would make this trip very difficult. That is a matter of stress to them. There is evidence that an important reason why Mrs Vulagi wished to be buried in Sydney was to spare her family members the cost and difficulty of the return trips to Fiji to attend her grave.

Logistics

37. There is a plot reserved for Mrs Vulagi at the Forest Lawn Memorial Park at Leppington. It appears that funds are available for the burial to take place and the burial can proceed without further delay. Fijian custom requires burials to take place soon after death. There has already been delay. The site in Leppington is close to most of Mrs Vulagi’s living relatives and her community in Australia. She had been part of that community for over 35 years.

Conclusion

38. I have no doubt about the plaintiff’s sincerity in seeking to abide by her mother’s expressed wish to be buried in Nakini village, consistently with Fijian cultural traditions. However, Mrs Vulagi’s other children do not share the plaintiff’s views about the burial of their mother.

39. I accept that Mrs Vulagi’s firm view in May 2025 was to be buried in Sydney, close to her living descendants and local community. While she appears to have changed her views, or had reservations, shortly before she died, in my view, orders that facilitate burial in Sydney are not strongly discordant with her wishes.

40. The evidence is that the opposition of the second defendant and Mrs Vulagi’s brother to burial at Nakini village is a cultural and practical impediment to burial in Fiji. I am not satisfied that she can be buried at Nakini village because that would require permission of the Chief and the evidence before me indicates that he will not give that permission unless there is a request from Mrs Vulagi’s brother, and he does not propose to make one. I am satisfied that the dignity of Mrs Vulagi is not advanced in pressing for a burial at Nakini village when there is at least a serious risk that the village will not accept the burial.

41. Given these considerations, I conclude that it is appropriate that the fourth defendant has carriage of the burial of Mrs Vulagi, which is to occur at the Forest Lawn Memorial Park in Leppington. The first defendant should not be restrained from releasing the body to the fourth defendant for that purpose.

42. Given that the only party moving the Court for relief is the plaintiff, I consider that the appropriate order is that I dismiss the Amended Summons. Against the possibility of the need for a party to approach the Court with some urgency to seek ancillary or consequential orders, I will give liberty to apply on short notice.

43. The second to fourth defendants seek costs. In my view, the second to fourth defendants should have their costs out of Mrs Vulagi’s estate, to the extent the estate has sufficient funds after payment of burial and related expenses. Otherwise, there should be no order as to costs. This reflects the fact that the plaintiff was motivated by a sincere belief that steps were required in order to fulfil her mother’s wishes, she being the child who cared for her mother in the last months of her life.

44. I make the following orders:

45. The Amended Summons is dismissed.

46. The second to fourth defendants may recover their costs from the estate of Nanise Tavakayaca Vulagi (to the extent funds remain after payment of burial and related expenses).

47. There otherwise be no order as to costs.

48. Liberty to apply on 24 hours’ notice.

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