We think failure to pay an aseda should not avoid or nullify a bequest. Firstly, the beneficiary might not be present when the declaration was made. What if he were out of the country and his relations refused to pay an aseda on his behalf? Secondly, what if the declarant died soon after the declaration before an aseda could be given, must the bequest fail? Finally, of what significance will an aseda be if the declarant did not die?
Notwithstanding his undoubted authority in these matters, I cannot find it in my heart to agree that the formulations of Ollennu J. in Summey v. Yohuno (supra) truly reflect the customary law relating to samansiw. In so far as he lays it down that the witnesses to the gift must necessarily include a heritable member of the donor’s family and that there should be acceptance of this gift by the giving of drinks, that decision should be disapproved.
The evidentiary requirements deemed necessary for the valid exercise of this right of making a samansiw can be made so rigorous as to render nugatory the acknowledged right to dispose of self-acquired property by samansiw. For the circumstances of oral will-making are often complicated by illness and other difficulties of access.
