Whose Beneficiaries are They Anyway? Copenhaver v. Rogers and the Attorney's Contract to Prepare a Will in Virginia

In a case of first impression in the Commonwealth, the Supreme Court of Virginia recently considered whether an attorney may be liable for drafting a will which results in the failure of a testamentary gift to intended beneficiaries. Historically, will beneficiaries had been denied a means of recovery against attorneys due to a lack of privity between the parties. Although Virginia remains a "strict privity' jurisdiction, it recognizes third-party contract beneficiary claims' and has legislatively abrogated the privity requirement in other areas of the law. The plaintiffs in Copenhaver v. Rogers sought to establish a third-party beneficiary claim as the intended beneficiaries of the contract between the deceased testator-client and the drafting attorney.

The court implicitly recognized the potential viability of such a claim, yet concluded that the requisite cause of action had not been stated. The court further surmised that under current Virginia law it would "no doubt be difficult for a litigant, in the case of this kind, to meet the requirements of third-party beneficiary claims."