The normal rule is that a non-client may state a claim for legal malpractice against a lawyer only if the client intended the lawyer’s services to benefit the non-client. Donahue v. Shughart, Thomson & Kilroy, 900 S.W.2d 624, 628-629 (Mo. 1995) (establishing a balancing test for determining whether a lawyer owes a duty to a non-client). This is consistent with hornbook third party beneficiary law.
What if the client retained a lawyer to prepare or modify a trust or will naming beneficiaries but died without expressly stating (or including in the instrument) that he intended the lawyer’s services to benefit those beneficiaries? The Missouri Court of Appeals has applied Donahue to imply such an intent from the settlor’s designation of the beneficiaries in the trust. Johnson v. Sandler, Balkin, Hellman, & Weinstein, P.C., 958 S.W.2d 42, 50 (Mo. App. 1997).
In Johnson, the beneficiaries under a trust established by their deceased father with the assistance of the father’s first lawyer sued the father’s second law firm for negligence in modifying the trusts to allow the father’s second wife to elect against the trust and deprive them of some of the proceeds. The Court of Appeals addressed the law firm’s contention that it had not performed services to benefit the plaintiffs, claiming that the decedent had not even instructed them to consider the plaintiffs:
“To satisfy Donahue, it is not necessary that the client advise the attorney drafting a will or a trust that he ‘intends to benefit’ the beneficiaries. The main purpose of retaining an attorney to prepare a testamentary trust is to ensure the future transfer of the settlor’s estate to the beneficiaries designated by the settlor…Therefore, an intent to benefit is inherent in designating persons as beneficiaries of a trust or will.” 958 S.W.2d at 50.
A few jurisdictions continue to hold that, absent fraud or collusion or malice, an attorney is not liable to a non-client for harm caused by the attorney’s negligence in drafting a will or trust. But, the majority of jurisdictions, like Missouri, recognize that intended beneficiaries harmed by a lawyer’s malpractice may maintain a cause of action against the lawyer even absent an attorney client relationship. See, Leak-Gilbert v. Fahle, 55 P.3d 1054, 1060 (Ok. 2002) (collecting cases at footnotes 15 and 16 and citing Johnson v. Sandler).