dissenting.
I respectfully dissent. In my view, a limited exception to the rule precluding liability of attorneys to third parties should be applicable when the party seeking recovery is an intended beneficiary of a negligently drafted estate planning instrument. I would hold that a duty of care exists under these circumstances, and consequently, I would reverse the determination of the trial court.
In an action premised on alleged negligence, whether a legal duty is owed by a particular defendant to a particular plaintiff as well as the scope of any such duty are questions of law which a court must determine. Perreira v. State, 768 P.2d 1198 (Colo. 1989). A court’s conclusion as to the existence of a duty is “an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” University of Denver v. Whitlock, 744 P.2d 54, 57 (1987).
A duty may arise independent of any contractual relationship, and the absence of a contract does not preclude recognition of a duty. Greenberg v. Perkins, 845 P.2d 530 (Colo.1993).
Several factors, including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the harm, and the consequences of placing this burden on the defendant are all relevant. Greenberg v. Perkins, supra.
These factors, however, are not exclusive; a court may consider any other relevant factors based on the competing individual and social interests implicated by the facts of the case. Perreira v. State, supra. Indeed, as the majority has recognized, the question is essentially one of fairness under contemporary standards. That is, would reasonable persons recognize and agree that a duty of care exists? Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987).
Generally, a duty of care is owed with regard to a person’s affirmative conduct, and such a duty extends to all who may be fore-seeably injured if that conduct is negligently carried out. Greenberg v. Perkins, supra.
Utilizing the above factors, as well as others discussed hereafter, I conclude that a duty of care should exist here.
The risk involved in this case is substantial.
First, in terms of the value of property involved for the intended beneficiary, the risk to plaintiffs is that they will lose the legacies that are intended for them, with consequent costs and expenses attendant to litigating their entitlement to the same. While the degree of risk may vary with the value of the property involved, there is sufficient risk of harm resulting from alleged negligent drafting here to require Southard to act with reasonable care.
Moreover, it is fundamental that a client is entitled to believe in the efficacy of his or her estate planning documents, and even more fundamental that his or her wishes should be fully carried out. If estate planning documents do not effectuate the client’s desires, a loss of faith in our system of transfers to survivors and beneficiaries may ensue. Hence, there is an appreciable societal risk to the orderly transmission of a decedent’s property if no duty of care is recognized under these circumstances.
The risk involved here is foreseeable. Defendant was the drafter of the previous estate planning documents. He was aware generally of the extent of property involved since the bank was acting as trustee under an agency agreement for the settlor. Thus, *26the risk that the plaintiffs would be injured by negligent drafting was reasonably foreseeable to defendant.
More generally, the very reason an estate planning client seeks the advice of counsel is to effect the orderly transmission of his or her property to the designated entities or individuals described in the document. The negligent drafter of an improper will or trust can foresee that his or her conduct will result in consequences to intended beneficiaries.
The likelihood of injury here was foreseeable as well. Defendant knew or should have known that negligently drafting the documents would result in a dispute concerning the disposition of the settlor’s property. A negligently drafted will or trust is not only likely, but virtually certain to engender litigation since the testator or settlor is unavailable to testify to his or her true intent.
The social utility of defendant’s conduct is certainly significant; however, the utility of negligent conduct is not. Imposing a duty of care will not preclude defendant or attorneys generally from rendering services for estate planning clients; on the contrary it will only require such conduct to be carefully performed.
The magnitude of the burden of guarding against the harm is no greater than that which currently exists for careful preparation of documents for non-estate planning clients. In all other contexts, particularly in creation of contracts, attorneys recognize and shoulder the burden of preparing documents which reasonably effectuate their client’s interests and correspondingly bear the malpractice risk if those documents fail.
In addition, the conduct being scrutinized here is affirmative conduct in that defendant’s drafting changed a pre-existing document and altered the disposition of property that would have ensued had he not acted.
Accordingly, given the above considerations, and absent contrary ones, a duty of care should exist. There are, however, additional policies and factors which must be considered in this context. They include the policies outlined by previous decisions of this court in dealing with claims by third parties against attorneys.
Those cases which preclude recovery by third parties in attorney malpractice cases are based upon three well-founded and salutary public policies: (1) protection of the attorney’s duty of loyalty to and effective advocacy for the chent; (2) concern for the potential adversarial relationship between an attorney and third parties; and (3) the potential liability to an unlimited number of third parties. Montano v. Land Title Guarantee Co., 778 P.2d 328 (Colo.App.1989). However, a recognition here of a limited exception will not frustrate or negate any of these policies; rather, it will enhance their implementation.
First, permitting an intended beneficiary to pursue a legal malpractice claim for a negligently drafted estate planning instrument will re-enforce the duty of loyalty. Certainly the estate planning client expects that the document which the attorney drafts will effectuate the client’s intent. Few things could be more “loyal” than drafting an instrument which carries out the Ghent’s expressly articulated desires.
Moreover, imposing liability would undoubtedly create a heightened interest in careful preparation of such instruments, thus assisting effective advocacy for the client’s interests. Drafting more precise documents will also yield predictability of result for the chent and potentially decrease estate litigation which, in turn, will result in a lower cost for implementation of the Ghent’s goals.
Second, I see no significant conflict of interest being created nor a potentially adversarial relationship being developed between the drafting attorney and third parties under these circumstances, as long as the estate planning instrument accurately reflects and appropriately implements the intention of the chent. If the instrument is valid and prepared as directed by the chent, no liability would arise. The chent remains free to change his or her intentions and desires regarding disposition of assets by executing a new will or trust.
When an individual or entity can prove they are intended beneficiaries of the instrument, no apparent conflicts arise. The duty of an attorney to exert his or her best efforts on behalf of the chent is not antithetical to or *27inconsistent with any duty to an intended beneficiary, since the client’s and beneficiaries’ interests appear to be the same under these circumstances.
Moreover, intended beneficiaries recognized as such in the dispositive instrument do not have any vested rights until implementation of the instrument, which for the estate planning client typically occurs at death. An attorney would have no obligation to notify designated beneficiaries of their status, nor advise them if their status changes. Nor will the attorney “represent” them, because the attorney’s duty is to implement the desires of the client, not those of the beneficiary.
Finally, the potential liability of an attorney in these circumstances is not unlimited. The duty I would recognize here is owed to intended beneficiaries, identified in the instrument, a class which is readily discerna-ble. Moreover, the attorney will most certainly know the general extent of the Ghent’s wealth and can readily gauge the potential liability accordingly. The attorney can negate this potential liability by refusing the undertaking or, at the minimum, can compensate for the magnitude of the undertaking in part by the size of the fee charged.
Having determined that the imposition of a duty is appropriate, I would define the duty to require defendant to use reasonable care in drafting the estate planning document so as not to cause harm to an intended beneficiary under the instrument. See Fleming v. Lentz, Evans & King, P.C., 873 P.2d 38 (Colo.App.1994).
Since sufficient facts and conclusions are alleged in the complaint, which we must accept as true, to plead negligence against defendant, I would reverse and reinstate the complaint as to that claim. The trier of fact would be required to determine whether, among other things, defendant breached the duty of care whether the Glovers were intended beneficiaries.
Moreover, inasmuch as the plaintiffs assert, as an alternative theory of liability, that they are direct and intended third-party beneficiaries of the contract between defendant and the settlor, I would also allow the alternative pleading of a third-party contract claim.
A person not a party to an express contract may bring an action on such contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely incidental benefit of the contract. E.B. Roberts Construction Co. v. Concrete Contractors, Inc., 704 P.2d 859 (Colo.1985).
Sufficient facts and conclusions are alleged in the complaint to trigger a third-party beneficiary claim; hence, I would reverse and reinstate the complaint as to that claim as well.
Shriners Hospital for Crippled Children, Inc. v. Southard, 892 P.2d 417 (Colo.App. 1994), decided by a separate division of this court, does not require a different result. There, the hospital’s interest was eliminated from the estate planning instrument by the settlor’s direction, and the hospital could not allege that inconsistencies between the set-tlor’s will and the trust instrument reflected an unequivocal intent to benefit the hospital at the settlor’s death.
Here, however, the plaintiffs specifically allege that they were intended beneficiaries under the trust agreement, and their settlement of the “validity” litigation was precipitated by defendant’s negligent drafting. Hence the issue of the settlor’s actual intent remains an issue of fact for determination at trial.
In conclusion, recognition of a duty under these limited circumstances is warranted. Reasonable persons, in my view, would recognize and agree that a duty of care exists, thus mandating judicial recognition. Moreover, alternative third-party beneficiary theories are available when, as here, a contract duty may exist.
Accordingly, I would reverse the judgment of dismissal and remand for further proceedings on the plaintiffs claims of malpractice and breach of contract.