Citation. 304 Or. 281, 744 P.2d 1289 (1987)
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Defendant, an attorney, was directed by a client to include a bequest of money to Plaintiff in client’s will. Defendant failed to do so and client died.
Synopsis of Rule of Law.
A person who was intended to benefit from a client’s bequest may sue client’s lawyer if the lawyer fails to include the bequest in client’s will and client dies.
Facts.
Client directed Defendant to write a bequest of money for Plaintiff into client’s will. When Client died, no such bequest was found in the will or in any accompanying document. Plaintiff tried to get judicial reformation of the will. Failing, Plaintiff brought this suit against Defendant.
Issue.
May Plaintiff sue Defendant for leaving a bequest, intended for Plaintiff out of client’s will?
Held.
Yes
Plaintiff alleges that Defendant was negligent and that he failed to perform the contract he had with his client. Other jurisdictions sometimes allow intended devisees to recover damages where the decedent’s attorney failed to carry out the wishes of the decedent in drafting testamentary instrument.
In this case, Plaintiff is a classic example of an intended beneficiary. Client made a contract that was designed to benefit Plaintiff, with Defendant which Defendant failed to carry out. Plaintiff may enforce the contract that was made for his benefit. Barring that, Plaintiff may sue for damages.
Discussion.
An intended beneficiary has the right to enforce the contract just as one who made the contract. If performance is not possible, the intended beneficiary may sue for damages, just as one who made the contract could.
