concurring.
I agree and join in the opinion of the majority. I think further comment is required because of the dissent of Chief Justice Roberts. I concede that it is difficult conceptually to find a contract cause of action and at the same time to reject the trespass claim. I do, however, accept the legitimacy of the policy arguments set forth in the majority opinion for restricting recovery under a theory of malpractice. The use of what I believe to be an appropriate application of the third party beneficiary concept, in view of *64its recent development, Restatement (2nd) of Contracts § 302 (1981); see, Introductory Note to Chapter 14 and Reporter’s Note to § 302, Restatement (2nd) of Contracts (1981),1 in this instance is justified even though' the general trespass claim is not permitted. It would be unconscionable to permit admitted actionable conduct to be insulated by the fortuitous death of the person recognized in the law to have standing to prosecute such a claim, where the brunt of the injury from such conduct is born by a living party.2
It is for this, reason that I believe the majority opinion expresses the preferable view to be followed in this matter.
. Recent resolution of the doctrinal difficulties historically present in the rights of contract beneficiaries by a shift of emphasis from “duty” to “intention” calls for a relaxation of the strict rule of Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950).
. I do not accept the implicit suggestion of the Chief Justice that there was no claim by the decedent in view of the ambulatory nature of a testamentary document prior to the death of the testator. The contract upon which the obligation arises required the scrivener to fulfill the intention of the testator expressed to him at the time of the drafting. The fact that the testator could subsequently change the proposed testamentary disposition is of no moment. The scrivener’s obligation was to provide that which he undertook to do and the failure to do so constituted the breach which justified the recovery.