concurring in part and dissenting in part:
¶ 1 I must respectfully dissent from the majority opinion insofar as it reverses the trial court’s summary judgment granted in favor of Mr. Singer. I agree with the view of the Court of Appeals that Dr. Hesser suf*870fered no damage by reason of Mr. Singer’s actions and therefore presented no cognizable cause of action against him. It was the settlement agreement into which Dr. Hesser voluntarily entered that caused the loss he complains of here; he was not harmed by Mr. Singer’s actions, negligent or otherwise.
¶2 Ms. Hesser’s will was admitted to probate in November, 1992. Such a judgment or decree by a court is conclusive as to the validity of the will and the judgment stands as final if it is not modified or revoked on a direct proceeding by a contest brought within three months or reversed on appeal. See, 58 O.S.1991, §§ 61, 67. In June, 1993, OMRF’s contest to the will was dismissed by the trial court as untimely and the court also held that notice had been properly published to the heirs, legatees and devisees pursuant to 58 O.S.1991, §§ 25, 26. The will contests filed by decedent’s heirs at law in August and December, 1993, were never ruled on by the trial court because Dr. Hesser entered into the settlement agreement with those heirs and released his claim to the estate for some $400,000.00. The trial court approved that agreement in the final order of distribution of Ms. Hesser’s estate and found that decedent had died testate.
¶ 3 It is easy to understand why Dr. Hes-ser believed at that time that he was facing “catastrophic litigation consequences” because of Mr. Singer’s failures to follow the probate statutes and therefore his only reasonable course would be to enter into a compromise settlement with the heirs and OMRF, the residuary beneficiary under the first will. It was not unreasonable for Dr. Hesser to think that even though the heirs were out of time they would prevail on their complaint about Mr. Singer’s failure to give statutory notice and that they would then be allowed to appear and challenge the validity of the second will for improper execution. He naturally feared that challenge would be successful and result in the loss of his specific legacy and receipt of the residuary estate.
¶4 The surprise, of course, is that in spite of the seemingly insurmountable defects in the will and the notice procedure, Dr. Hesser has won on all the probate lawsuit issues. Under the reasoning of today’s opinion he has prevailed on every issue concerned and, but for the settlement agreement, he would have taken his legacy and the entire residuary estate. This Court finds that the heirs had actual notice of the proceedings, that they contested the validity of the proceedings and were therefore not prejudiced by Mr. Singer’s failure to give statutory notice. Importantly, it also finds that Dr. Hesser, in turn, suffered no prejudice and was put in the same position as if the heirs had received statutory notice. Accordingly, the Court holds that the trial court’s judgment in favor of Mr. Singer on this issue was proper and should be affirmed.
¶ 5 The Court fails to recognize, however, that this decision is determinative of the issues before us in the instant ease. The result of its holding is that the heirs’ contests of the will were untimely and therefore the improper execution of the will could not have been raised by the heirs and could not have prevented Dr. Hesser from recovering under the will. By implication, the opinion holds the heirs were jurisdietionally unable to have appeared in the probate action. They could not have challenged the validity of the 1992 will at the time of the settlement — nor can they or Dr. Hesser complain of it now— because the time limits of 58 O.S.1991, § 67 are a limitation on the power of the court to hear and determine a challenge to a will. The statutory lapse of time provision extinguishes the right of a contestant to challenge a will’s admission and the “opportunity to bring a post-probate will contest is irretrievably lost unless the quest for relief be brought within the specific period provided in § 67.” In the Matter of the Estate of Speake, 1987 OK 61, 743 P.2d 648, 652. See also Matter of Estate of Mouse, 1993 OK 157, 864 P.2d 1284 (Okla.1993); In re Estate of Redwine, 445 P.2d 275, 278 (Okla.1968); Mayweather v. Wallace, 195 Okl. 587, 159 P.2d 529 (1945).
¶ 6 The majority’s remand for a determination of injuries suffered by Dr. Hesser as a result of Mr. Singer’s failure to execute the will is therefore inherently inconsistent. That issue no longer exists in this litigation since this Court has concluded that there were no defendants in the probate litigation *871at the time of the settlement agreement who could have raised the issue of the invalidity of the will and thereby caused Dr. Hesser to be injured by an adverse ruling. All the contestants’ objections to the validity of the will were then time barred: the trial court had previously dismissed OMRF because its contest was untimely and the heirs were also out of time — and have now been so held by this Court.
¶7 Dr. Hesser settled his claim against the estate after the will was admitted to probate, after the period of timely filing of contests by OMRF and the heirs at law had passed and before he had been denied any distribution under the duly admitted will. Today’s decision leaves no doubt that Dr. Hesser’s injury resulted from his decision to enter into the settlement agreement, not from Mr. Singer’s actions. In retrospect it is clear that Dr. Hesser should have stayed in the probate litigation and pursued his remedies with the trial court and appealed to this Court if that had been necessary.
¶ 8 In its opinion this Court has created a cause of action recognizing the potential liability of an attorney to a non-client beneficiary in a will contest. It is somewhat unclear to me whether the Court intends this action to be in contract or in tort or a hybrid, but, in any event, in the absence of some damage suffered by this plaintiff, no cognizable action should lie here. That being so, the Court’s creation of this action is mere dicta and, in my opinion, its reversal of the trial court is erroneous and ill-advised and I therefore dissent.
I am authorized to state that Justice Har-grave joins with me in the views expressed herein.