The object of this paragraph is to prevent the creation of entailed interests after the commencement of the Act. (Entails created before such commencement are unaffected -- Section 25(4).) It may well be sucessful in this but the wording used does tend to suggest that the draftsman had never encountered an entailed interest.

Paragraph 5(1) deals with the situation --

where a person purports by an instrument coming into operation after the commencement of this Act to grant to another person an entailed interest in real or personal property

This Schedule contains provisions consequential on Section 2 and so it would seem that the grant of an entailed instrument after the commencement of the Act would fall within this paragraph if such grant formed part of a variation of existing trusts to which Section 2 applied, even if the instrument granting the entail comes into operation after the commencement of this Act.

It is to be noted that it is the date when the instrument comes into operation that is relevant for this purpose; a Will normally comes into operation at the death of the testator and not when it was made.

The paragraph continues by providing that --

the instrument --

(a) is not effective to grant an entailed interest, but

(b) operates instead as a declaration that the property is held in trust absolutely for the person to whom an entailed interest in the property was purportedly granted

It is not entirely clear what is meant by the expression "grant to another person" in the paragraph. It is extremely unusual for an entailed interest to be conferred intentionally on a living person. What of course normally happens is that for example a testator leaves Blackacre to his only son (who is an infant at his father's death) for life with remainder to the first and other sons of that son in tail with remainders over. On the eventual death of the son Blackacre will become held on trust for the eldest grandson then living in tail. Such grandson will probably have been born many years after his grandfather's death. He may not be the eldest grandson; he may have had one or more brothers who died in infancy.

The question that then arises is to whom the entailed interest was granted by the Will for the purposes of Paragraph 5. Was it granted to the first grandchild (who died in infancy) because at his birth be beceame entitled to an entiled interest in remainder? Or was it granted to the grandson who survived his father because at the latter's death he became entitled to an entailed interest in possession? No guidance is provided by the paragraph.

Sub-paragraph (2) deals with the case where a person purports to grant himself an entailed interest. It seems debatable whether anyone has ever attempted to do this.