## Facts

- A testator retained an attorney to prepare testamentary instruments and directed the attorney to include a specified monetary bequest to Constance Hale.
- The attorney prepared a will and related trust instrument, but the specified bequest to Hale was omitted from both.
- After the testator died, Hale discovered the omission and received no bequest.
- Hale unsuccessfully sought judicial reformation of the will and trust.
- Hale then sued the attorney for damages, alleging (1) negligence in performing the professional engagement and (2) breach of the attorney–client contract enforceable by Hale as an intended third-party beneficiary.

## Issues

1. Whether a specifically intended beneficiary of a promised testamentary bequest may sue the drafting attorney as an intended third-party beneficiary for breach of the attorney–client contract.
2. Whether the same intended beneficiary may sue the drafting attorney in negligence for malpractice despite lack of attorney–client privity.

## Decision

- The Oregon Supreme Court held that the complaint stated a contract claim by Hale as an intended third-party beneficiary of the attorney’s professional contract with the testator.
- The court also held that the complaint stated a tort claim for negligence that was derivative of the duty created by the professional engagement.
- The court reinstated the contract claim and allowed the negligence claim to proceed, leaving statute-of-limitations and estoppel questions for further proceedings.

## Legal Principles

- A nonparty may enforce a contract as an intended third-party beneficiary when the contract’s objective includes a specific, direct benefit to that person.
- In estate-planning engagements, when a lawyer undertakes to include a specified bequest for an identified person, that person is an intended beneficiary entitled to seek damages if performance fails and cannot be made effective after the client’s death.
- An attorney’s professional undertaking can create a duty of care extending beyond the client to a specifically intended beneficiary of the undertaking; lack of privity does not categorically bar a malpractice claim in that setting.
- The tort claim is “derivative” in the sense that it rests on breach of the duty arising from the professional contract to perform the promised drafting task.

## Conclusion

The court recognized that an identified intended beneficiary of a promised testamentary gift may pursue damages against the drafting attorney both as a third-party beneficiary for breach of the attorney–client contract and in negligence for breach of the professional duty created by the engagement.


Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (Or. 1987)