dissenting.
I disagree with the holding of the majority that the appellants’ pleading does not state a valid cause of action under Texas law.
In my opinion, the appellants alleged the essential elements of a third-party beneficiary action against the appellees. The appellants alleged their relationship with the testator; described their beneficial interest as devisees under the testator’s will; asserted that the testator had created the will for their benefit; and claimed that the attorney, who had prepared the will, represented to the testator that the will was legally and properly drawn and would effectively carry out his wishes. The appel*584lants alleged that because of the scrivener’s negligence and malpractice in preparing, authoring, planning, and making the will, the testator’s Louisiana properties never became part of the trust res, resulting in their damage and loss. The appellants further alleged that the scrivener had either actual or constructive knowledge that the trust provisions violated Louisiana law, and that the Louisiana properties, which the testator intended to be placed in trust for them, did not pass to them as the testator had intended.
The appellees did not urge special exceptions to the appellants’ petition, and because the appellees’ motion for summary judgment is directed solely to the appellants’ petition, we must liberally construe and consider as true all allegations of fact therein contained. See Hatten v. Mohr Chevrolet Co., 366 S.W.2d 945, 946 (Tex.Civ.App.—Dallas 1963, no writ); Benson v. Grace Oil Co., 430 S.W.2d 98, 104 (Tex.Civ.App.—Corpus Christi 1968, no writ).
The majority opinion applies the general rule that an attorney is liable only for negligent performance of duty to his client, not to incidental parties who are not in privity of contract with him. See Bryan & Amidei v. Law, 435 S.W.2d 587, 593 (Tex.Civ.App.—Fort Worth 1968, no writ). In my opinion, the general rule should not be applied in circumstances, such as those present here, where the client directs the attorney to prepare an agreement for the benefit of designated third parties. This is especially true where the intended beneficiaries of a will seek redress for negligent drafting of a will provision created for their express benefit. In such a case, it is the beneficiaries, not the testator, who are directly injured by the scrivener’s breach of duty. The consequences of such a breach are clearly foreseeable, and the beneficiaries are not merely incidental parties affected by a contract, so the policies behind the general rule should not bar recovery here. See Annotation, Attorney’s Liability, To One Other Than His Immediate Client, For Consequences of Negligence in Carrying Out Legal Duties, 45 A.L.R. 3rd 1181, 1196 (1972).
The trend of decisions in other jurisdictions has been to allow third-party beneficiary actions where the plaintiffs are the intended beneficiaries of a negligently drafted will. See Lucas v. Hamm, 56 Cal.2d 583, 364 P.2d 685, 688, 15 Cal Rptr. 821, 824 (1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962); Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 19 (1958); 45 A.L.R. at 1181-96. Indeed, in the Texas decision relied upon by the majority, the court recognized this trend in the case law, even though it felt bound to follow the general rule. Berry v. Dodson, Nunley & Taylor, P.C., 717 S.W.2d 716, 718 (Tex.App.—San Antonio 1986, writ dism’d by agr.). But the facts in Berry are somewhat different than those present here. In that case, the allegation was not that the testator’s attorney had been guilty of negligent draftsmanship, but that he had not exercised diligence in having the will prepared for execution before the testator died. Id. at 717.
In this case, the appellants’ petition sets forth the essential elements of a third-party action, based upon an alleged breach of duty in drafting a decedent’s will. See Restatement (Second) of Contracts, sec. 302 (1979). In my opinion, the trial court erred in holding, as a matter of law, that the appellants’ petition did not allege a legal right and duty recognizable under Texas law.
I would reverse the trial court’s summary judgment and remand the case for further proceedings.