Clause 10 of the bill at annexure 6 which apart from

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clause 10 of the Bill at Annexure 6, which apart from the modification referred to is in identical terms to the English provision). Extrinsic evidence 4.4 Section 21 of the AJA provides – "21. (1) This section applies to a will – (a) in so far as any part of it is meaningless; (b) in so far as the language used in any part of it is ambiguous on the face of it; (c) in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances. (2) In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation." 4.5 Section 21 of the AJA permits the admission of extrinsic evidence including evidence of a testator's intention where it will assist in the interpretation of a will where part of it is meaningless, ambiguous on the face of it, or ambiguous in the light of surrounding circumstances. This removes a long-standing anomaly in the law which has bound judges to struggle with the language of the will and nothing else despite the existence of clear and unequivocal extrinsic evidence which would have provided a speedy answer to an ambiguity. We recommend that a similar provision be adopted in Hong 28
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Kong (see clause 10 of the Bill). The relevant provision is in identical terms to the English one. Re Willams [1985] 1 All ER 964 is, however, an example of the operation of section 21 where the extrinsic evidence was not admitted as it was of no assistance in construing the will. 4.6 There is another context in which we would like there to be a clear statement that extrinsic evidence is admissible. This is in relation to the manner in which a will is executed, revoked or altered. In Re Colling [1972] 3 All ER 729 Ungoed-Thomas J observed that section 9 of the Wills Act 1837 (upon which the present section 5 is based) has embedded within it the requirement of oral evidence. We recommend that this be taken but one step further in admitting oral (and other) statements by the testator himself. We accordingly recommend that after section 17 a section 17A be inserted providing that "extrinsic evidence, including evidence of a statement made at any time by the testator, may be admitted of the manner in which a will was executed, revoked or altered" (see clause 6 of the Bill at Annexure 6). Ambiguous gifts to a spouse 4.7 Section 22 of the AJA provides – "22. Except where a contrary intention is shown it shall be presumed that if a testator devises or bequeaths property to his spouse in terms which in themselves would give an absolute interest to the spouse, but by the same instrument purports to give his issue an interest in the same property, the gift to the spouse is absolute notwithstanding the purported gift to the issue." 4.8 This provision deals with a relatively minor point and one which may commonly arise in a will prepared by a non-lawyer. A testator makes an apparently absolute gift to his spouse but then gives an apparent interest in
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