The Commonwealth of Virginia has long applied the strict privity rule with respect to legal malpractice causes of action.¹ In 2016, however, the Virginia Supreme Court issued its decision in Thorsen v. Richmond SPCA, 292 Va. 257 (2016). Distilled to its essence, Thorsen held that a disappointed testamentary heir/beneficiary, who was not a party (a stranger) to the attorney-client contract, could sue an attorney for malpractice as an intended third-party beneficiary. The holding served to create an exception to the common law’s strict privity rule in legal malpractice causes of action. The decision also dispelled the commonly held assumption that the court’s 1989 decision in Copenhaver v. Rogers, 238 Va. 361 (1989) had precluded a legal malpractice cause of action by an intended third-party beneficiary.

It is well to note at this point that a legal malpractice action by an intended third-party beneficiary is separate and distinct from an action by the client. Here’s why.

Clearly both actions are based on the attorney-client contract. In a traditional legal malpractice claim, however, the suit is made in the client’s name, or that of the client’s personal representative, and brought by the client or the personal representative for the client’s alleged damages.

In stark contrast to a client’s claim, an intended third-party beneficiary claim involves a stranger to the attorney-client contract who sues in his/her/its own name for his/her/its own damages, not the client’s damages. And that is exactly what the Richmond SPCA did and sought in Thorsen.

Indeed, the Virginia Supreme Court noted in Thorsen the clear distinction between the two causes of action:

The essence of a third-party beneficiary’s claim is that others have agreed between themselves to bestow a benefit upon the third party but one of the parties to the agreement fails to uphold his part of the bargain. (Internal citation omitted). In short, there is an agreement out of which arises an obligation to benefit a third party, the breach of which causes damages to that third party. Accordingly, where the intent to benefit the plaintiff is clear and the promisee (testator) is unable to enforce the contract, our precedent recognizes a cause of action among the narrow class of third-party beneficiaries to enforce claims which would otherwise have no recourse for failed legacies resulting from attorney malpractice. (Internal citation omitted).²

The damages sought in the respective claims are also different.³ The court explained that:

 A primary rationale for supporting third-party beneficiary claims was that donee contracts, of which testamentary instruments are one example, otherwise could rarely be enforced, as the promisee could recover only nominal damages upon nonperformance: “The party to the contract would have no action for its breach except nominal damages since he was not the one who suffered by the promisor's default. If the beneficiary could not sue there could be no adequate recovery even though the breach was established.”⁴

 Enactment of Va. Code § 64.2-520.1.
The Supreme Court’s decision in Thorsen understandably sent shock waves through the Virginia trusts and estates bar, as well as Lawyers Professional Liability (LPL) insurers. In 2017, the Virginia General Assembly responded to the decision and enacted Va. Code § 64.2-520.1. The statute was intended to overrule the main holding of Thorsen. Pertinent to this article, it provided:

A. An action for damages to an individual or an individual’s estate, including future tax liability, resulting from legal malpractice concerning the individual’s estate planning, including the provision of legal advice or the preparation of legal documents, regardless of when executed, shall accrue upon completion of the representation during which the malpractice occurred.

B. Notwithstanding § 55.1-119, but subject to any written agreement between the individual and the defendant that expressly grants standing to a person who is not a party to the representation by specific reference to this subsection, the action may be maintained only by the individual or by the individual’s personal representative.

If the legislative intent was to overrule Thorsen, then there were multiple problems with the new statute’s language. Perhaps fortuitously, the statute has not been invoked or applied in any written decision following its enactment.

In 2025, acting on a 2024 recommendation from the Virginia Bar Association’s Boyd Graves Conference,⁵ the General Assembly unanimously passed an amendment to § 64.2-520.1 to include language that fully expressed the legislature’s intent. The statute⁶ now provides:

A. Notwithstanding § 55.1-119, an attorney does not owe a legal duty to any person other than the client in any engagement for the purpose of the client’s estate planning, including the provision of legal advice or the preparation of legal documents, unless the client and attorney enter into a signed, written agreement that expressly provides that the client and attorney intend to confer a benefit upon a third party by specific reference to this subsection.

B. Notwithstanding the provisions of this section, no action shall be based upon damages that may reasonably be avoided or that result from a change of law subsequent to the representation upon which the action is based.

The amended statute now makes clear that an attorney engaged by a client for the purpose of estate planning, etc., owes no “legal duty to a person other than the client,” unless there is a signed, written agreement between the client and attorney expressing the mutual intent to confer a benefit upon a stranger to the attorney-client contract and, in addition, specifically references the statute. Thus, the default under Virginia law is that no legal duty exists under the circumstances and, the only way such a duty can arise is if the attorney signs a written agreement to that effect – a consent, one would think, that will be very rarely provided.

Further, both the House and Senate bills made clear that the foregoing amendments were “a statement of existing law.” Thus, as a practical matter, the amendments are deemed to state the law when the statute was enacted in 2017. As a result, the amended statute should apply to causes of action that accrued since the 2017 enactment, but before the 2025 amendments.

Obviously, there are pros and cons to this public policy issue. The legislature’s 2017 enactment and 2025 amendments to the statute, however, are in keeping with Virginia’s long-recognized adherence to the strict privity rule in legal malpractice claims and serve to limit, both the cause and right of actions that maybe maintained against a testamentary attorney.
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^{1 See Ayylidiz v. Kidd, 220 Va. 1080 (1980) (an attorney’s liability for damages generally is only to his client following some dereliction of duty to the client); Copenhaver v. Rogers, 238 Va. 361 (1989) (rejecting attempt to proceed under an intended third-party beneficiary status); MNC Credit Corp. v. Sickels, 255 Va. 314 (1998) (holding that the common law of England controls in Virginia; the common law forbids the assignment of legal malpractice causes of action; the General Assembly’s enactment of a generic statute permitting assignment of contract actions was not specific enough to abrogate the common law prohibition of assignment of legal malpractice claims); Johnson v. Hart, 279 Va. 617 (2010) (rejecting attempts by testamentary beneficiary to sue on behalf of estate as a “beneficial owner” under Va. Code § 8.01-13).} 

^{2 Thorsen, 292 Va. at 271.}

^{3 See id. at 267.} 

^4 Id.

^{5 The Boyd Graves Conference is an invitation-only group of approximately 100 leading lawyers, professors, and judges representing a wide variety of practices and practice areas dedicated to the study and improvement of civil procedure in the commonwealth.} 

^{6 The amendments became effective on July 1, 2025.}