## Facts

- Oscar H. Smith and Alma I. Smith retained attorney William F. Fuiten and his firm to prepare reciprocal wills consistent with the Smiths’ intentions.
- Each will left the testator’s estate to the surviving spouse, conditioned on the survivor living at least 30 days longer.
- The wills provided that if the Smiths died in a “common accident,” their estates would pass to their nephews, James Elvin Ogle and Leland W. Ogle.
- The wills did not address the contingency where one spouse died within 30 days of the other from causes other than a common accident.
- Oscar died first; Alma died 15 days later, not in a common accident.
- Because the wills did not dispose of property under that sequence, the estates passed by intestate succession, allegedly contrary to the Smiths’ intent to benefit the nephews if neither spouse survived the other by 30 days.
- The nephews sued Fuiten’s estate and his law partner, alleging negligent drafting and breach of the attorney-client agreement intended to benefit them.

## Issues

1. Whether a will-drafting attorney owes a tort duty to intended beneficiaries, permitting them to sue for negligent drafting that defeats the testator’s intent.
2. Whether intended beneficiaries may sue the drafting attorney as third-party beneficiaries for breach of the attorney-client contract to prepare wills effectuating the testators’ intent.

## Decision

- The Illinois Supreme Court affirmed the appellate court’s reversal of the trial court’s dismissal and allowed the action to proceed.
- The Court held that intended beneficiaries may state a negligence claim against a will-drafting attorney when alleged negligence defeats or impairs the testator’s intent to benefit them.
- The Court held that the nephews also stated a claim as intended third-party beneficiaries of the contract for legal services, based on allegations that the engagement was meant to directly benefit them under the relevant contingency.

## Legal Principles

- In the will-drafting context, an attorney’s duty of care may extend beyond the client to identified intended beneficiaries when the attorney’s services are undertaken for the purpose of effectuating a donative intent toward those beneficiaries and injury to them is foreseeable.
- Strict privity does not bar malpractice claims by intended will beneficiaries where the alleged negligence defeats the primary objective of the representation and leaves no practical remedy through the deceased client.
- A nonparty may sue on a contract as an intended third-party beneficiary when the contract was made for the nonparty’s direct benefit; allegations that the attorney-client agreement was intended to confer a specific testamentary benefit can state such a claim.

## Conclusion

The court permitted the nephews’ negligence and third-party beneficiary contract claims to go forward, recognizing that intended beneficiaries may seek damages from a will-drafting attorney when negligent drafting foreseeably frustrates the testators’ expressed plan to benefit them.


Ogle v. Fuiten, 466 N.E.2d 224 (Ill. 1984)