Thank you so much for your replies - much appreciated.
Let me explain my difficulty in more detail. I am an executor of the will in question and appointed a Solicitor (large practice) to administer the estate. Our tax advisor suggested the DofA. We have asked our Solicitor to draw up the DoA to appropriate the shares equally. We have not asked for any tax advice from our Solicitor. To cut to the chase, the Solicitor does not agree that it can be done. He reluctantly drew up a DofA to appropriate jointly but this contained ‘schoolboy errors’ and which we have been unable to execute. Last week, he even suggested that a Deed of Variation should be signed instead to transfer the shares to the individuals (the testator died nearly 4 years ago). I have asked again that he draw up the DoA to appropriate the shares equally to the individuals, and if not why not, and if not, to appropriate the shares jointly. This is their reply:-
'In relation to the Deed of Appropriation, I have already explained that we are, as Lawyers, straying into the area of tax which, in the first instance, we were not engaged to advise on and, indeed, are not qualified to do so. In this regard, I have noted that we would need to defer to your Tax Advisors as to the efficacy of any Deed. Subject to this, I have already explained why I feel that where the shares (the whole and undivided shareholding as set out in the Second Schedule) are currently held by the Trustees of the Estate in one shareholding and where the Will divides the sale proceeds of those shares between the residuary beneficiaries, I could not see, from a logical point of view, how the individual residuary beneficiaries could utilise their capital gains tax allowances.
Similarly, I cannot see how the Trustees of a Deed of Appropriation, could hold the shares of the Estate jointly, as, once again, a residuary beneficiary’s interest is in the sale proceeds and not the shares themselves.
However, if your Tax Advisor feels that this will work, then the current Deed of Appropriation which currently states that the only residue of the Estate that is left are, in fact, the stocks and shares and that, from the date of the Deed, the Personal Representatives hold the shares as a block as Bare Trustees for the beneficiaries and not as Personal Representatives of the Estate has already been drafted.
The only thought that occurs to me is that, if the Estate residue comprises of more than just the shareholding, then the Deed of Appropriation may need to be slightly amended to cover this and also express that the intention is to sell the shares.
As currently worded, the shares as a block would be sold by the Trustees of the Deed of Appropriation for the purpose of sale and thereafter division between the residuary beneficiaries pursuant to the Will.’
As mentioned, we have specifically not asked them for tax advice nor let them speak to our tax adviser - that is a matter for us/beneficiaries. The only other asset in the estate apart from the shares is cash, which the Solicitors are soaking up quite readily. If he considers that the draft document needs to be amended to reflect that the estate also holds an unappropriated cash sum, then really he is unhappy with his own drafting. I realise that this forum is probably not the route to address the problem, but how do I convince the Solicitor to ‘think again’?