In this case, two residual legatees
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оf a will brought an action against the lawyer who drafted it. Plaintiffs assert that, in addition to their status as residual legatees, they are the intended third-party beneficiaries of what they characterize as an “implied” promise that they allege that defеndant made to testator in connection with that will. Plaintiffs further allege that defendant failed to carry out the terms of his implied promise to testator, that they suffered damages as a result of that failure, and that they have either a viable breach of contract claim or a viable negligence claim (or both) against defendant as a result. The trial court dismissed plaintiffs’ complaint for failing to state claims for either breach of contract or negligence. The Court of Appeals reversed, holding that, under
Hale v. Groce,
Because this is an appeal from a trial court order dismissing a сomplaint under ORCP 21 A(8),
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we assume that all well-pleaded facts are true and give plaintiffs the benefit of all favorable inferences that reasonably may be drawn from those factual allegations.
See, e.g., Babick v. Oregon Arena Corp.,
Plaintiffs then filed the рresent breach of contract and professional negligence action against defendant. In addition to the facts recited above, plaintiffs alleged the following facts in support of their breach of contract claim:
“[D]efеndant promised to prepare a will for [testator]. * * * Defendant knew that [testator’s] estate plan included residuary bequests to plaintiff[s.]
“Defendant’s promise to prepare [testator’s] will included an implied promise to make the will invulnerable to a will contest so as to achieve [testatоr’s]plan to maximize gifts to residuary beneficiaries, including [plaintiffs]. [Plaintiffs] were intended, donee beneficiaries of defendant’s promises, including his promise to prepare a will which would not be attacked by a will contest.
«H« * * * *
“The will contest would not havе been filed if [testator’s] will had been prepared by an independent lawyer. * * * In preparing [testator’s] will, defendant, under the circumstances, breached his implied promise to make the will invulnerable to a will contest, resulting in damages to plaintiffs, whо bring this breach of contract claim as intended donee beneficiaries of defendant’s implied promise to [testator].”
(Emphasis added.)
Plaintiffs incorporated the above-mentioned allegations in their negligence claim, in which they also alleged that defendant had been negligent in several particulars related to exposing testator’s estate plan to a will contest and “failing to otherwise minimize the chances of a will contest being filed or the success of a will contest.”
Defendаnt moved to dismiss both plaintiffs’ claims, arguing that plaintiffs did not allege that defendant had made a specific contractual promise to render the will invulnerable to a contest. Defendant argued that an implied promise to do so is legally insufficient to support either of plaintiffs’ claims or to establish that plaintiffs were intended third-party beneficiaries of defendant’s contract with testator. The trial court agreed, concluding that an implied promise to make a will impervious to attack alleges only a professional duty that a lawyer owes to a client and not a duty that runs to nonclients.
Plaintiffs appealed, and the Court of Appeals reversed the trial court’s decision.
Caba,
Defendant argues to this court, as he did before the Court of Appeals, that plaintiffs must allege a specific and express promise before they may proceed against a lawyer in a third-party, nonclient action for either breach of contract or negligence. With respect to plaintiffs’ breach of contract claim, however, defendant also argues that a promise to render the will invulnerable to a will contest alleges only a general standard of care that cannot support a contract action. Finally, defendant argues that plaintiffs have failed to state any basis for relief.
Plaintiffs’ case — and, as noted, the Court of Appeals opinion — relied heavily on this court’s decision in
Hale,
The court in Hale began by observing,
“The two claims are related, but they differ in important respects. Standing alone, without a duty to plaintiff derived from defendant’s contractual undertaking, plaintiffs tort claim would confront the rule that one ordinarily is not liable for negligently causing a stranger’s purely economic loss without injuring his person or property. * * * It does not suffice that the harm is a foreseeable consequence of negligent conduct that may make one liable to someone else, for instance to a client. Some source of a duty outside the common law of negligence is required. * * * A contract claim, on the other hand, does not necessarily depend on showing negligence.”
“We agree that the beneficiary in these cases is not only a рlausible but a classic ‘intended’ third-party beneficiary of the lawyer’s promise to his client within the rule of [the] Restatement [(Second) of Contracts] section 302(l)(b) and may enforce the duty so created[.]”
Id. at 286. The court went on to hold that,
“[b]ecause 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.”
Id.
The court in Hale considered a will beneficiary to be a classic “intended” third-party beneficiary when the facts satisfy the standards in the Restatement (Second) of Contracts, section 302 (1981), which provides:
“Unless otherwise agreed between promisor and prom-isee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the benefiсiary is appropriate to effectuate the intention of the parties and either
“(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
“(b) the circumstancеs indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
“(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.”
Here, plaintiffs invoke Hale (and the Restatement) alleging that defendant’s promisе to the testator to draft a will that included a specific bequest to them (to make them residual legatees) “included an implied promise to make the will invulnerable to a will contest so as to achieve [testator’s] plan to maximize gifts to residuary beneficiaries.” The difficulty with that second part of plaintiffs’ allegation, however, is that, because (as plaintiffs themselves have pleaded) that part of defendant’s promise was only “implied,” the complaint must allege some basis fоr the implication.
Two sources of such an implication are possible: the facts and the law. The complaint alleges no facts that would permit the implication. Plaintiffs, while entitled to all the inferences that fairly may be drawn from their allegations, also are deemed, in standing on their third amended complaint, to have alleged the facts in the best light possible.
See Harding v. Bell,
We perceivе no basis for doing so. A promise implied in law needs some basis in policies associated with contracts in general,
We hold that plaintiffs’ allegation of an implied promisе to make the will invulnerable to a will contest did not constitute a legally sufficient source of duty and breach to enable plaintiffs to bring their breach of contract and negligence claims. The contrary conclusion of the Court of Appеals was error. It must be reversed.
The decision of the Court of Appeals is reversed. The judgment of the trial court is affirmed.
Notes
One of the plaintiffs in this case, Floy Jones, was not a residual legatee under testator’s will. However, the complaint allegеs that another of the residual legatees, Linda Cammann, assigned her claim against defendant to Jones. Accordingly, our references to “plaintiffs” in this opinion are to persons with claims as residual legatees.
ORCP 21A provides, in part:
“Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the рleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim [.]”
Plaintiffs would not be able to sustain their claims under the more general, professional negligence standard, because they are not parties to the contract between defendant and testator and the damages that they assert are financial only.
See Hale,