Who Decides Burial When Cultures Collide?

Who Decides Burial When Cultures Collide?

Marsdens were recently successful in acting for the defendants in a burial dispute.

In this case, the deceased, Lucy* passed away in August 2025.  Lucy was born in Fiji, however had lived in Sydney since about 1988.  Lucy’s children, grandchildren and great-grandchildren all lived in Sydney nearby.  Lucy’s closest living relatives in Fiji were her elderly siblings.

Lucy made a Will in May 2025, around three (3) months prior to her passing, appointing her daughter, a defendant, Jane* as her executor, with a specific direction she wished to be buried in Sydney.  Jane arranged the funeral and had purchased a plot in Sydney to bury Lucy.

After Lucy passing, one of her children, Sarah* filed a claim against the funeral home, Jane and their two (2) other siblings seeking that Lucy’s body be repatriated to Fiji and buried in Lucy’s Fijian village.  Sarah argued that Lucy had changed her mind prior to her death and wished to be buried in Fiji.

On the other side, Jane and her siblings argued that Lucy should be buried in Sydney, where her family resides and where Lucy could more readily be laid to rest.  Marsdens acted on behalf of Jane.

In determining where Lucy was to be buried, the Court weighed up the following:

1. The logistics and available funding for disposal of the body;
2. The wishes or preferences of the deceased, if known;
3. The wishes and preferences of the community or communities, in which the deceased lived (including, but not necessarily limited to, members of family);
4. Any cultural or spiritual factors material to how the deceased lived life; and
5. The accessibility of the deceased’s mortal remains to those who seek to mourn a death or to remember.

Whilst the Court weighed up all of these factors, the Court placed significant weight on the cultural considerations.  Lucy’s eldest son gave strong evidence that culturally, there is a protocol when burying a person in Fiji, and that protocol involves the village Chief in Fiji having the consent of the eldest male of each generation to bury Lucy.  In this case, Lucy’s son needed to approve of the burial in Fiji (which he did not), then Lucy’s brother needed to approve of the burial in Fiji (which there was no evidence he would), before the Chief of the Fijian village could provide final approval. 

The Court held that given the relevant blessings to burial of each male generation was not provided, there was “at least a strong risk that any desire on the part of the plaintiff or [Lucy] for her body to be buried in Fiji cannot be fulfilled.”  This was the decisive consideration.

The Court ordered that Jane could bury Lucy in Sydney.  Most importantly, Lucy has now been laid to rest.

Arguments about the burial of a person’s body after they pass away are complex.  Such arguments are generally made clearer when your Will states how you would like your body to be dealt with upon your passing, noting that is a listed consideration of the Court.

If you have not reviewed your Will in a while, this article should serve as a reminder to review your Will and ensure it leaves your Executor and your family with directions as to what you want to happen after your passing.

* Names have been changed.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.