¶1dissenting.
¶2Although I agree with the majority that appellee’s complaint fails to state a cause of action in trespass, I do not agree that appellee has a cognizable cause of action in assumpsit. Hence I dissent.
¶3Appellee’s complaint alleges that, “in exchange for valuable consideration,” appellant agreed with decedent Kent that appellant would draft a will naming appellee as the executrix and the residuary beneficiary of decedent’s estate. Such a will was prepared by appellant and executed by *65decedent on February 24, 1957. Kent died on October 12, 1972. On March 29, 1974, a New Jersey probate court upheld a challenge to the proposed distribution of real property to appellee on the ground that appellee had signed the will as an attesting witness. See N.J.StatAnn. §§ 3A:3-6 & 3A:3-7. The present action was commenced on January 23, 1976, nineteen years after the execution of the will, and more than three years after the death of decedent. Appellee died in December of 1978, and the present action is being pursued by the executor of her estate.
¶4The majority concludes that appellee had a right, as an intended “third-party beneficiary,” to insist on the fulfillment of “the intent of the testator to benefit the legatee.” This conclusion, however, ignores the fact that appellee could not have placed justifiable reliance upon the testamentary wishes of decedent either before or after his death, a critical factor under third-party beneficiary law. See Restatement (Second) of Contracts § 311(3) (1981). At no time during decedent Kent’s life could appellee have bound decedent to the wishes expressed in his 1957 will. As decedent was under no contractual obligation to make a will which named appellee as a beneficiary, decedent was thus free to change his testamentary intent until the day he died. See, e.g., Imhruglia Estate, 479 Pa. 95, 387 A.2d 851 (1978). Even at decedent’s death appellee was in no position to rely on a will naming her as beneficiary, for appellee could have no valid claim to decedent’s estate until the completion of probate proceedings. Once the bequest was deemed invalid, appellee eould have at most hoped for relief on an appeal, an option which she did not pursue.
¶5Even more important, the majority’s conclusion ignores the fact that, under third-party beneficiary law, the issue is not the fulfillment of the “intent of the testator”; rather, it is the enforceability, by a third party, of the intent of the parties to the contract. See Restatement (Second) of Contracts, supra, at § 302(1). Here, the record is clear that appellant and decedent did not intend that appellant would render services to appellee; the sole promise which appellant *66made to decedent was to write decedent’s will, a promise which appellant performed.
¶6Although appellant fairly may be charged with having impliedly promised decedent that the execution of the will would be conducted in a manner that would not result in the nullification of the bequest to appellee, decedent’s relief for a breach of such a promise would have been either a new, properly executed will or the cost of having such a will prepared. Moreover, decedent would have been obliged to seek relief within four or six years of the execution of the will, depending upon whether the contract was oral or written. See 42 Pa.C.S. §§ 5523(3) & 5527(2). Clearly decedent could not have claimed that relief could be sought by his estate after his death, fifteen years after the execution of the will. Nor, of course, could decedent’s estate have claimed that it was in any respect entitled to the value of the failed bequest.
¶7Appellee’s demand for far greater relief than that which would have been available to decedent makes it clear that what appellee is seeking to enforce is, in fact, not a promise made between appellant and decedent under the law of contracts, but rather an alleged duty owed by appellant directly to appellee under the law of torts. Having properly refused to recognize such a duty in a cause of action in trespass, the majority has offered no logical basis for its imposition of a similar duty as a purported application of third-party beneficiary law.
¶8The order of the Superior Court should be reversed and the order of the Court of Common Pleas of Bucks County dismissing appellee’s complaint reinstated.