Brief Fact Summary. 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.
Because under third-party analysis the contract creates a duty not only to the promisee, the client, but also to the intended beneficiary, negligent nonperformance may give rise to a negligence action as well.View Full Point of Law
Issue. May Plaintiff sue Defendant for leaving a bequest, intended for Plaintiff out of client’s will?
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.