' 1 We are asked to answer two questions: 1) whether, in the absence of a specific request by the client, an attorney owes a duty to the client or to the beneficiaries named in the client's will to conduct an investigation into the client's heirs independent of, or in addition to, the information provided by the client; and 2) whether the residual beneficiaries under a decedent's will have a cause of action for legal malpractice against the attorney who drafted the will under a theory of *1056 negligence or breach of contract when the will fails to identify all the decedent's heirs? We hold that: 1) when an attorney is retained to prepare a will, the attorney's duty to prepare the will according to the testator's wishes does not ordinarily include an investigation of a client's heirs independent of, or in addition to, the information provided by the client, unless the client requests such an investigation; and 2) an intended will benefi-clary may maintain a legal malpractice action under either negligence or contract theories against the drafter when the will fails to identify all the decedent's heirs as a result of the attorney's substandard professional performance.
FACTS
12 This cause concerns a dispute over the will of a widower, Edward Leak (Mr. Leak/decedent), which was executed in Talo-ga, Oklahoma, on February 4, 1997. In early 1997, Mr. Leak hired the defendant, Pauline Fahle (Fahle/lawyer) to update his will. According to the lawyer, Mr. Leak gave her a copy of his existing will. He told her that he wanted to change his personal representative to his daughter-in-law, Jolene Leak, the wife of his deceased son, and that he also wanted her to receive his gun collection.
T3 The lawyer insists that Mr. Leak identified his only heirs as the children of his deceased son (Alvin Troy Leak), Alvin James Leak, and the plaintiffs, Aleecia Leak-Gilbert and Dolcie Leak (beneficiaries). Mr. Leak also informed the lawyer that he wanted to disinherit the grandson. Consequently, the lawyer prepared a will, made Mr. Leak's requested changes and left the grandson one dollar and gave the granddaughters equal shares of the remainder of his estate. 1
T4 After the Mr. Leak died in December of 1999, the will was submitted for probate. The probate proceeding revealed that Mr. Leak had four additional grandchildren by another deceased son, Clifford Wayne Leak, who were not mentioned in Mr. Leak's will. Consequently, the probate court treated the grandchildren as unintentionally omitted heirs, and it divided the estate among the grandchildren as if the decedent had died intestate. 2
5 On June 22, 2001, the beneficiaries filed a legal malpractice action in federal district court against Fahle, asserting that she was negligent, and that she had breached the contract with the decedent because she failed to properly prepare his will according to his intentions. The beneficiaries allege that Fahle did not complete an investigation into the existence of the decedent's children or grandchildren. They insist that Fable should have reviewed all of the files of her sister-the lawyer who had probated decedent's wife's will in 1989 which would have disclosed the omitted grandchildren.
1 6 The lawyer answered the beneficiaries' complaint and insisted that, while her sister may have handled the probate of the decedent's wife, she died in 1990 and she and her sister never practiced law together. She did admit that they shared an office space for a very short period prior to her sister's death, and that her sister's files remain stored in the office building.
17 On December 6, 2001, the lawyer moved for summary judgment. Recognizing that state law is determinative of Fahle's liability and that Oklahoma has not addressed the precise issue presented, but that *1057 a split of authority exists in other states, 3 the federal court certified questions to this Court pursuant to the Uniform Certification of Questions of Law Act. 20 0.8.2001 § 1601 et seq. on April 2, 2002. We set a briefing cycle which was completed on May 14, 2002.
I.
18 WHEN AN ATTORNEY IS RETAINED TO PREPARE A WILL, THE ATTORNEY'S DUTY TO PREPARE THE WILL ACCORDING TO THE TESTATOR'S WISHES DOES NOT ORDINARILY INCLUDE AN INVESTIGATION OF A CLIENTS HEIRS INDEPENDENT OF, OR IN ADDITION TO, THE INFORMATION PROVIDED BY THE CLIENT, UNLESS THE CLIENT REQUESTS SUCH AN INVESTIGATION.
T9 The beneficiaries assert that an attorney's duty when preparing testamentary documents includes: 1) inquiring into the client's heirs at law; 2) offering a proper explanation and advising the client as to what is meant by heirs at law and the significance of including all heirs at law in a will; and 3) confirming the heir information by conducting an investigation into a client's heirs independent of, or in addition to, the information provided by the client, even when not requested to do so. The beneficiaries offer no authority recognizing such a duty. 4
1 10 The lawyer does not dispute that the drafter of a will has a duty, absent a specific request by the client, to inquire, explain, or advise a client regarding heirs at law. Rather, she argues that the lawyer has no duty to confirm the client's information by conducting an independent investigation into the client's heirs. The lawyer cites to Stangland v. Brock,
$11 Lawyers are required to exercise ordinary professional skill and diligence in rendering their professional. 5 Accompanying every contract is a common-law duty to perform with care, skill, reasonable experience and faithfulness the thing agreed to be done. 6 Duty of care is a question of law described as the total of policy considerations which lead to the conclusion that the plaintiff is entitled to protection. 7 If a duty exists, the trier of fact then determines whether a violation of that duty has occurred. 8
112 In Stangland v. Brock, supra, an attorney drafted a will for a client leaving all of the client's real property to certain beneficiaries. Three years later, the client sold the real property and another attorney in the same firm prepared the real estate contract. The sale of the real property affected the disposition of the estate. After the testator died, the beneficiaries brought legal malprac *1058 tice actions against the attorneys asserting that both attorneys, at the time the real estate contract was drafted, had a duty to advise the client that the sale of the property could affect his estate plan.
{13 The Stangland court determined that holding attorneys to such a duty would expand the obligation of a lawyer who drafts a will beyond reasonable limits. It recognized that the time and expense which would be required for the attorney to monitor the testator's activities with respect to his property would prevent the attorney from providing reliable and economical services, and that it would constitute an overwhelming burden on the attorney's practice as a whole. Additionally, holding the attorney to such a duty would place an unreasonable burden on the attorney, would markedly increase the cost of providing legal services, and would impute knowledge of the contents of the client's will.
{ 14 In Leavenworth v. Mathes, supra, an attorney drafted a will pursuant to the client's wishes which included the distribution of certain assets. When the testator died, the assets of the estate were insufficient to satisfy the specific bequests to the beneficiaries. The beneficiaries brought a negligence action against the attorney. The court held that an attorney owes no duty to will beneficiaries to ensure the existence of testamentary assets when drafting a will. It recognized that although court have allowed intended beneficiaries to maintain a cause of action against attorneys who fail to draft a will in conformity, with a client's wishes, the malpractice claims always focus on errors in the drafting and execution of the will rather than misinformation from clients.
115 The reasoning behind Stangland and Leavenworth, applies here, where it appears that the attorney may have been given incomplete or inaccurate information. 9 We agree with the beneficiaries that when an attorney is hired to prepare a will, the attorney's obligation is to: 1) inquire into the client's heirs at law; 2) offer a proper explanation; 3) advise the client as to what is meant by heirs at law; 4) explain the significance of including all heirs at law in a will; and 5) prepare a will according to the client's directions.
116 However, to hold that an attorney has a duty to confirm heir information by conducting an investigation into a client's heirs independent of, or in addition to, the information provided by the client, even when not requested to do so, would expand the obligation of the lawyer beyond reasonable limits, The duty between an attorney and third persons affected by the attorney-client agreement should not be any greater than the duty between the attorney and the client. Although some exceptional cireum-stances might exist which would give rise to such a duty, none are present here. Consequently, we hold that, unless the client requests such an investigation, when an attorney is retained to draft a will, the attorney's duty to prepare a will according to the testator's wishes does not include the duty to investigate into a client's heirs independent of, or in addition to, the information provided by the client.
*1059 II.
17 AN INTENDED WILL BENEFICIARY MAY MAINTAIN A LEGAL MALPRACTICE ACTION UNDER NEGLIGENCE OR CONTRACT THEORIES WHEN THE WILL FAILS TO IDENTIFY ALL THE DECEDENTS HEIRS AS A RESULT OF THE ATTORNEY'S SUBSTANDARD PROFESSIONAL PERFORMANCE.
% 18 The beneficiaries argue that: 1) liability for legal malpractice should extend to intended beneficiaries of a will when the will does not carry out the testator's expressed intent and does not identify all of the decedent's heirs; and 2) Oklahoma should follow the majority rule allowing intended beneficiaries to assert malpractice claims based on contract or tort theories of recovery. The lawyer concedes that an attorney could be guilty of malpractice if the client revealed necessary heirship information and the attorney failed to include it in the will. Nevertheless, she asserts that if the client fails to fully and accurately disclose his/her heirs, no malpractice action exists.
119 We note at the outset that the trial court must resolve the disputed fact questions which exist regarding whether the client disclosed all of his heirs and whether the lawyer: 1) inquired into the client's heirs at law; and 2) offered a proper explanation and advised the client as to what is meant by heirs at law and the significance of including all heirs at law in a will. Nevertheless, the question remains whether liability may be extended to will beneficiaries and under what theory they may assert their cause of action. 10
120 Accompanying every contract is a common law duty to perform the contract with care, skill, reasonable experience and faithfulness the thing agreed to be done. A negligent failure to perform these duties is a tort and a breach of contract. 11 An action for breach of contract and an action in tort may arise from the same set of facts. 12 At common law, privity of contract was required before a tort action could arise from a breach of duty created by contract-ie. limiting liability to contracting parties. 13 However, liability for negligent breach of a contract with a third party is not necessarily dependent upon a pre-existing privity in legal relationship between the person injured and the person causing the injury. 14
121 This Court has previously addressed the extension of an attorney's liability, in the absence of privity, to third party, non-client, will beneficiaries in Hesser v. Central National Bank & Trust Co. of Enid,
11 22 Hesser involved an attorney who prepared a will for a client and then failed to properly execute the will. In the probate proceeding, the heirs at law contested the *1060 will, arguing that it was not properly executed. Subsequently, the matter was settled by agreement. Nevertheless, one of the beneficiaries under the will brought a legal malpractice action, asserting that the attorney was negligent in failing to properly execute the will. It was uncontested that the plaintiff was a third-party beneficiary to the agreement.
€ 23 The Hesser Court recognized that: 1) as part of the agreement to prepare the will, the attorney was under a common law duty to perform with care, skill, reasonable expediency and faithfulness to properly execute the will; and 2) a duty created by a contract may be extended to a third party when the contract is made expressly for the benefit of a third-party, non-client beneficiary and the harm to the beneficiary is foreseeable. The Court determined that intended beneficiaries of a will could maintain an action against the lawyer because, as a matter of law, it was foreseeable that an intended beneficiary under the terms of a will could be harmed by an attorney's failure to have the will properly executed.
{24 A few jurisdictions refuse to allow non-client, intended beneficiaries to bring such malpractice actions. 15 However, our decision in Hesser is in accord with the majority of jurisdictions which recognize that intended beneficiaries harmed by a lawyer's malpractice may maintain a cause of action against lawyers who draft testamentary doe-uments even though no attorney-client relationship exists. 16 Some of these courts have *1061 recognized such actions as negligence actions, 17 while others have determined that in an intended will beneficiary may proceed under either negligence or contract theories. 18 *1062 Those allowing an intended beneficiary of a will to assert a third party breach of contract theory generally recognize that when such a breach occurs, named intended beneficiaries of a will also hold third party beneficiary status under the agreement between the testator and the attorney to draft a will according to the testator's wishes. 19
125 We have not previously determined whether a non-client, third party, such as an intended benéficiary of a will, is limited to asserting a legal malpractice action based on a negligence theory of recovery or whether breach of a third party intended beneficiary contract theory may alternatively be asserted. However, in Great Plains Federal Savings and Loan Association v. Dabney,
126 Hesser teaches that when a lawyer undertakes to fulfill the testamentary instructions of a client, the lawyer must be aware that any consequences flowing from the lawyer's negligence will have an impact on the named beneficiaries. The failure of a testamentary scheme deprives the intended beneficiaries of their bequests. If the failure is due to substandard professional performance, it is reasonable to conclude that the injured parties should recover against the lawyer who caused their harm. Dabney teaches that when a third party, non-client is the person specifically intended to be benefit-ted by the legal services, the non-client may assert a breach of contract action against the lawyer.
% 27 Our decisions in Hesser and Dab-mney are consistent with those jurisdictions which allow intended will beneficiaries to assert malpractice claims. Consequently, we hold that an intended will beneficiary may maintain a legal malpractice action under negligence or contract theories against an attorney when the will fails to identify all of the decedent's heirs as a result of the attorney's substandard professional performance. 21
CONCLUSION
1 28 When an attorney is hired to prepare a will according to the client's directions, unless the client requests such an investigation, the attorney's obligation does not ordinarily include the duty to investigate the existence of a client's heirs independent of, or in addition to, the information provided by the client. Nevertheless, we recognize that when the will fails to identify all of the decedent's heirs as a result of the attorney's substandard professional performance, an intended will beneficiary may maintain a legal malpractice action under negligence or contract theories against an attorney.
Notes
. The will provides in pertinent part:
"... I direct that my Personal Representative sell all real property and personal property that I own in the state of Oklahoma, under Order of the Court, and that the proceeds, after all expenses are paid, be divided as follows:
1. Alvin James Leak, grandson-$1.00;
2. Alee Leak, grand-daughter-one-half (%) of the remaining proceeds, including the sale of real and personal property, cash and contracts of sale.
3. Dolcie Leak, grand-daughter-one-half of remaining proceeds, including sale of real and personal property, cash and contracts of sale...."
. Title 84 0.$.2001 § 132 provides:
''When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section."
. See generally, Annot., "What Constitutes Negligence Sufficient to Render Attorney Liable to Person other than Immediate Client," 61 A.L.R.Ath 464 (1988).
. The only authority offered by the beneficiaries is that: 1) the Oklahoma Uniform Jury Instructions define the duty of an attorney as possessing the degree of knowledge and ability ordinarily possessed by other members of that profession and exercising ordinary care, skill, diligence, and knowledge in the performance of service; 2) Hesser v. Central Nat'l Bank & Trust Co. of Enid,
. See, Norton v. Hughes,
. Lewis v. Farmers Ins. Co., Inc.,
. Delbrel v. Doenges Bros. Ford, Inc.,
. Salazar v. City of Oklahoma City,
. See also, Pizel v. Zuspann,
. We do not address whether beneficiaries may maintain a legal malpractice action against the attorney who represents the estate or a third party, non-beneficiary. See, e.g., Barner v. Sheldon,
. Lewis v. Farmers Ins. Co., Inc., see note 6, supra; Keel v. Titan Constr. Corp., see note 6, supra.
. Great Plains Federal Savings & Loan Association v. Dabney,
. Boren v. Thompson & Associates,
. Id.; Keel v. Titan Construction Corp., see note 6, supra.
. A few jurisdictions retain the rule that, absent fraud, collusion or malice, an attorney is not liable to a non-client for harm caused by the attorney's negligence in the drafting of a will or planning an estate. See, Miller v. Mooney,
. Blair v. Ing,
. See, Powers v. Hayes, see note 16, supra; Schreiner v. Scoville, see note 16, supra; Needham v. Hamilton; Auric v. Continental Casualty Co., see note 16, supra; Mieras v. DeBona, see note 16, supra.
. Blair v. Ing, see note 16, supra; Simpson v. Calivas, see note 16, supra; Hale v. Groce, see note 16, supra; Ogle v. Fuiten, see note 16, supra. Pennsylvania allows named beneficiaries under a will to assert an action in assumpsit *1062 against an attorney, but not negligence. See, Guy v. Liederbach, note 16, supra. One court has determined that an intended beneficiary may assert a third party beneficiary breach of contract action without discussing negligence theories of recovery. See Stowe v. Smith, note 16, supra.
. Blair v. Ing, see note 16, supra; Simpson v. Calivas, see note 16, supra; Hale v. Groce, see note 16, supra; Ogle v. Fuiten, see note 16, supra.
. A contract made expressly for the benefit of a third person may be enforced by the third person. Title 15 0.$.2001 § 29 provides:
"A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it."
The primary issue in a case where the suing plaintiff claims third party beneficiary status is whether the direct parties to the contract recognized the third party to have such status. Great Plains Federal Savings & Loan Association v. Dabney, see note 12, supra.
. Our conclusion in this regard should not be read to expand our holding in Great Plains Federal Savings and Loan Association v. Dabney, see note 12, supra, as it relates to a suit in contract against an attorney for professional malpractice.