Filed 4/29/16 Estate of Watson CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Estate of DENNIS I. WATSON, Deceased.

MARY S. WATSON,

Plaintiff and Respondent,

v.

CYNTHIA D. WATSON,

Defendant and Appellant.

F071927, F072303

(Super. Ct. No. 444557)

OPINION

APPEAL from an order of the Superior Court of Fresno County. Debra J. 

Kazanjian, Judge.

Coleman & Horowitt and Eliot S. Nahigian for Defendant and Appellant.

Baker Manock & Jensen and Jeffrey A. Jaech for Plaintiff and Respondent.

-ooOooIn this probate proceeding, appellant appeals from a nunc pro tunc order correcting 

an alleged clerical error in the judgment of final distribution entered in 1992. We 

conclude the error was not a clerical error that the trial court could correct at any time by 

a nunc pro tunc order. Accordingly, we reverse the order.
2.

FACTUAL AND PROCEDURAL BACKGROUND

In 1991, Mary Watson, in propria persona, petitioned for probate of the will of her 

deceased husband, Dennis Watson. She was appointed executor of his will. With the 

help of a paralegal, she later petitioned for final distribution of the estate and submitted a 

proposed judgment of final distribution. The petition listed the heirs as Mary,1

decedent’s spouse; Cynthia D. Knott (also known as Cynthia D. Watson), decedent’s 

daughter from a previous marriage; Martin R. Claborn and Kimberly D. Garrett (also 

known as Kimberly Claborn Miller), decedent’s stepchildren (Mary’s children). The 

petition requested that decedent’s one-half community property interest in the household 

furnishings and personal property be distributed to Mary as her sole and separate 

property, and the residue of decedent’s estate (which included three parcels of real 

property) be distributed to Mary in trust, on the terms set out in provisions Sixth, 

Seventh, and Eighth of the will. Those provisions of the will, which were attached to the 

petition for final distribution, provided that the residue of the estate was to be held in 

trust, with income to Mary for life; after her death, the trust estate would be distributed in 

equal shares to each of decedent’s children then living and each group of issue of a 

deceased child. In August 1992, the probate court granted Mary’s petition and entered 

the judgment of final distribution as submitted by Mary. 

In May 2014, Mary filed a petition to correct a clerical error in the judgment and 

to amend the judgment nunc pro tunc. Her petition contended provision Second of 

decedent’s will was inadvertently omitted from the judgment of final distribution. 

Provision Second of the will contained a definition of the term “children,” which defined 

the term to include stepchildren. The petition to correct clerical error alleged the 

paralegal who prepared the petition for final distribution and the judgment of final 

 

1 We refer to the parties by their first names for clarity and convenience, because some of 

them share a last name or have multiple last names. No disrespect is intended.
3.

distribution on Mary’s behalf neglected to include this definition of “children” in both 

documents. Mary assumed the remaindermen of the testamentary trust were Cynthia, 

Martin and Kimberly, until April 2014, when she consulted an estate planning attorney 

and was advised the language of the judgment made Cynthia the sole remainderman of 

the trust. 

Mary alleged the judgment did not conform to the decedent’s will and the error in 

the language of the judgment was apparent from the face of the judgment roll and should 

be corrected. Cynthia opposed the petition, contending there was no error in the 

judgment, or if there was an error, it was not a clerical error that could be corrected nunc 

pro tunc. The probate court granted Mary’s petition to correct clerical error and amended 

the judgment of final distribution nunc pro tunc to add a definition of the term “children” 

consistent with the terms of provision Second of the will. Cynthia appeals.2 

DISCUSSION

I. Standard of Review

Under Code of Civil Procedure section 473, subdivision (d),3 “[t]he court may, 

upon motion of the injured party, or its own motion, correct clerical mistakes in its 

judgment or orders as entered, so as to conform to the judgment or order directed.” 

Relief under section 473 “is addressed to the sound discretion of the trial court and the 

trial court’s order will not be disturbed absent a showing of clear abuse of discretion.” 

(Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1035.) “The abuse of 

discretion standard is not a unified standard; the deference it calls for varies according to 

the aspect of a trial court’s ruling under review. The trial court’s findings of fact are 

 

2 Cynthia filed notices of appeal from both the April 9, 2015, order after hearing and the 

April 9, 2015, order correcting clerical error and amending judgment nunc pro tunc. The appeals 

have been consolidated.

3 All further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
4.

reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its 

application of the law to the facts is reversible only if arbitrary and capricious.” 

(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712.) When a trial court’s 

order was based on a misinterpretation of applicable law, an abuse of discretion is 

established. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294, fns. omitted.)

II. Nunc Pro Tunc Order

“‘The rule is well settled in this state that every court of record has the inherent 

power to correct its records so that they shall conform to the facts and speak the truth, and 

likewise correct any error or defect occurring in a record through acts of omission or 

commission of the clerk in entering of record the judgments or orders of the court, and 

such correction may be made at any time by the court on its own motion, ... [Citations.] 

[¶] It is equally well established that the court in the exercise of this power is not 

authorized to do more than to make its records conform to the actual facts, and cannot, 

under the form of an amendment of its records, correct a judicial error, or make of record 

an order or judgment that was never, in fact, given. ... [Citations.]’ [Citation.] [¶] It is 

not the function of a nunc pro tunc order ‘to make an order now for then, but to enter now 

for then an order previously made.’” (Siegal v. Superior Court (1968) 68 Cal.2d 97, 

101.) “‘The question presented to the court on a hearing of a motion for a nunc pro tunc

order is: What order was in fact made at the time by the trial judge?’” (Estate of 

Eckstrom (1960) 54 Cal.2d 540, 544 (Eckstrom).)

III. Correction of Clerical Error

“‘The function of a nunc pro tunc order is merely to correct the record of the 

judgment and not to alter the judgment actually rendered.’” (Eckstrom, supra, 54 Cal.2d 

at p. 544.) The trial court cannot “change an order which has become final even though 

made in error, if in fact the order made was that intended to be made.” (Ibid.) Thus, we 

must determine what judgment was rendered by the trial court originally and whether the 

judgment entered failed to properly reflect that judgment through clerical error.
5.

The order originally made by the trial court “is presumed to be that intended in the 

absence of contrary evidence [citation], and the fact of error alone cannot rebut that 

presumption.” (Eckstrom, supra, 54 Cal.2d at p. 548.) Thus, in order to overcome the 

presumption and enter an order correcting a clerical error, there must be evidence that the 

order as entered was not the order the trial court judge intended at the time to make.

In this case, there was no evidence the judge intended to make any order other 

than the one originally entered. In past cases, evidence of the judge’s intent has taken the 

form of the recollection or testimony of the judge who made the order (Estate of Doane

(1964) 62 Cal.2d 68, 70 (Doane); Estate of Remick (1946) 75 Cal.App.2d 24, 29 

(Remick); Carpenter v. Pacific Mutual Life Ins. Co. (1939) 14 Cal.2d 704, 709–710), the 

judge’s handwritten notes (In re Roberts (1962) 200 Cal.App.2d 95, 98; Carpenter, 

supra, at p. 709), the clerk’s minutes (Estate of Harris (1962) 200 Cal.App.2d 578, 587–

588), the court reporter’s transcript or affidavit (Nathanson v. Murphy (1957) 147 

Cal.App.2d 462, 468; Carpenter, supra, at p. 710; Kaufman v. Shain (1896) 111 Cal. 16, 

23–24), or the testimony of attorneys present when the decision was rendered 

(Nathanson, supra, at pp. 467–468). Here, there was no evidence of any discrepancy 

between the judgment entered and the judgment the judge rendered or intended to render. 

The only evidence presented by Mary in support of her petition to correct clerical 

error was evidence that the paralegal who drafted the petition for final distribution of the 

estate and the proposed judgment of final distribution on Mary’s behalf mistakenly 

omitted certain provisions of the will from those documents. Evidence of the paralegal’s 

error is not evidence of the judge’s intent. An error by a party’s attorney or the attorney’s 

staff in preparing a judgment may be a correctable clerical error, when it causes the 

formal written judgment to not reflect the judgment actually rendered by the court. (See

Estate of Goldberg (1938) 10 Cal.2d 709, 710–711, 717 (Goldberg) [clerical error where 

the minute order granted the decree of distribution “‘in accordance with terms of the 

will’” and required attorney to prepare a “‘proper decree,’” but order prepared omitted 
6.

name of one heir]; Zisk v. City of Roseville (1976) 56 Cal.App.3d 41, 47 [clerical error in 

judgment of dismissal when trial court sustained demurrer of all the defendants without 

leave to amend, but attorney-prepared judgment dismissed action against city only, and 

failed to include the individual defendants]; Russell v. Superior Court (1967) 252 

Cal.App.2d 1, 6, 8 [clerical error where parties stipulated to review of alimony order 

upon entry of a final decree, and parties and trial court intended trial court to reserve 

power to modify alimony, but attorney-prepared final decree of divorce seemed to make 

review merely permissive]; Cunningham v. Frymire (1960) 180 Cal.App.2d 891, 893 [in 

partition action, where the parties litigated concerning four pieces of real property, trial 

court properly corrected omission of legal description of one property from findings and 

conclusions and interlocutory decree prepared by the plaintiff’s attorney].) 

However, “[i]f the court misconstrued the evidence before it, or misapplied the 

law applicable to the facts disclosed by the evidence, or was even misled by counsel, such 

an error was in no sense a clerical error which could thereafter be corrected by the court 

upon its own motion or in any proceeding except on motion for a new trial.” (Lankton v. 

Superior Court (1936) 5 Cal.2d 694, 696, italics added.) Here, the probate court did not 

render a judgment separate from or prior to the preparation of the written judgment of 

final distribution. The paralegal prepared the proposed judgment and Mary submitted it 

and requested that it be entered. The evidence demonstrates the probate court judge 

entered exactly the judgment he was asked to enter. Both the petition and the judgment 

contained the same provisions. There was no evidence the judge intended to enter a 

judgment that included the omitted definitions despite Mary’s failure to request such a 

judgment. 

Our Supreme Court has rejected an argument that a judgment may be corrected on 

the ground it was not the judgment the trial court ought to have made. (Eckstrom, supra, 

54 Cal.2d at pp. 545–546.) “If this theory were carried to its logical and ultimate 

conclusion it would give to a motion made pursuant to section 473 of the Code of Civil 
7.

Procedure the efficacy of a motion for new trial or an appeal long after the time for 

making such a motion or filing an appeal had expired. If not carried to that extreme it 

would, nevertheless, permit the court in each instance to determine that a particular 

judicial error, although resulting in an order or judgment the court intended to make, 

might be presumed to be a clerical misprision in order that the court could do what should 

have been done on motion for a new trial or an appeal. [Citation.] Neither of these 

results lie within the purview of section 473 nor of any inherent power of the court to 

correct its own error.” (Id. at pp. 546–547.) It follows that “it is not proper to amend an 

order nunc pro tunc to correct judicial inadvertence, omission, oversight or error, or to 

show what the court might or should have done as distinguished from what it actually 

did. An order made nunc pro tunc should correct clerical error by placing on the record 

what was actually decided by the court but was incorrectly recorded. It may not be used 

as a vehicle to review an order for legal or judicial error by ‘correcting’ the order in order 

to enter a new one.” (Hamilton v. Laine (1997) 57 Cal.App.4th 885, 891 (Hamilton).)

Unlike Goldberg, the probate court in this case did not render a broad order to 

distribute the assets of the estate pursuant to the terms of the will, while the judgment 

thereafter prepared by counsel and entered by the court overlooked some of the terms of 

the will. In Goldberg, the decedent left a piece of real property to his daughter, Emma, in 

trust for his son, Fritz. (Goldberg, supra, 10 Cal.2d 710.) The will provided that, if Fritz 

died leaving issue, the property would vest in his issue; if he died without wife or issue, it 

would vest in the decedent’s four children, listed by name. (Id. at p. 710.) The petition 

for final distribution of the estate attached a copy of the will and requested that the 

residue of the estate “‘be distributed to those entitled thereto.’” (Ibid.) The probate 

court’s minute order stated: “‘Decree of distribution granted in accordance with terms of 

the will, and the Court directs that the proper decree be prepared and filed herein.’” (Id. 

at p. 711.)
8.

The decree of final distribution actually entered in the decedent’s probate 

proceeding omitted Fritz’s name from the list of children in whom the property would 

vest if he died leaving no wife or issue. Thirty-five years later, on Fritz’s death, when the 

only surviving child of the decedent sought distribution of the trust property to himself, 

the probate court made a nunc pro tunc order correcting a clerical error in the decree of 

distribution to conform to the provisions of the will by adding Fritz to the list of the 

decedent’s children in whom the property would vest if Fritz died without wife or issue. 

(Goldberg, supra, 10 Cal.2d at p. 711.) 

The appellate court determined the probate court properly corrected a clerical error 

in the original decree of distribution. Decedent’s will directed that the property be 

divided among his four children. (Goldberg, supra, 10 Cal.2d at p. 714.) The petition for 

distribution asked that decedent’s property be distributed to those entitled to it. The 

decree of distribution was granted “‘in accordance with the terms of the will’” and 

directed preparation of a “‘proper decree.’” (Ibid.) There was no contrary evidence 

indicating the original probate court intended to make an order not in conformity with the 

will. Although the error was not made by the clerk, the court concluded it was properly 

determined to be a clerical error that could be corrected by the probate court at any time, 

even thirty-five years later. (Id. at pp. 714–717.)

Mary argues that, as in Goldberg, the probate court here ordered distribution as 

directed in the will. The record is to the contrary. The petition for final distribution 

asked that the residue of the estate be distributed to Mary in trust “upon the terms and 

provisions of Paragraphs SIXTH, SEVENTH and EIGHTH of the Will, a copy of which 

paragraphs is attached hereto.” The attachment contained only provisions Sixth, Seventh, 

and Eighth of the will. The minute order was on a form with boxes to check. It simply 

ordered that the petition for final distribution be granted. The judgment of final 

distribution, which the probate judge signed, ordered that the residue of decedent’s estate 

be distributed to Mary “to be held, administered and distributed in accordance with the 
9.

provisions of paragraphs SIXTH, SEVENTH and EIGHTH of decedent’s Will, as 

follows,” thereafter quoting in full those provisions.

Thus, the probate court’s judgment did not, as did the decree in Goldberg, broadly 

order that the residue of the estate be distributed pursuant to the provisions of the will. 

Rather, it specifically ordered that the residue be “held, administered and distributed in 

accordance with” the terms of provisions Sixth, Seventh, and Eighth of the will only. It 

identified and quoted only those provisions. The judgment was consistent with the 

petition for final distribution, which asked that the residue be distributed pursuant to 

provisions Sixth, Seventh, and Eighth of the will. The probate court granted the petition. 

There was no evidence the probate court considered doing or intended to do anything 

other than what was requested and what the judgment of final distribution indicates it did: 

order distribution of the residue of the estate in accordance with the terms of provisions 

Sixth, Seventh, and Eighth of the will. 

In Eckstrom, 20 months after entry of the final decree of distribution, the executor 

of the will filed a motion to correct an alleged clerical error in the decree. (Eckstrom, 

supra, 54 Cal.2d at p. 542.) As requested in the petition for final distribution, the decree 

ordered distribution of one-third of the estate, less a certain amount for federal estate 

taxes, to a trustee. The executor’s motion requested that the deduction of estate taxes be 

eliminated, because the trust had already been credited with payment of those taxes. The 

probate court granted the motion, concluding the provision for deduction of taxes was a 

clerical error, not reasonably attributable to the exercise of judicial discretion. (Id. at 

p. 543.) 

The Supreme Court concluded the probate court could not correct the judgment to 

conform to what it ought to have provided. (Eckstrom, supra, 54 Cal.2d at pp. 546–547.) 

It recognized trial courts have both an inherent and a statutory right to cause their acts 

and proceedings to be correctly set forth in their records, where the records fail to 

indicate the order or direction in fact made. “By its very nature, however, the right is 
10.

exercisable only for the purpose of ascertaining and reflecting the truth. In most 

instances, as in the present case, the truth must be ascertained from the intention of the 

trial judge in making his original order.” (Id. at p. 547.) There was no testimony from 

the judge who entered the judgment regarding his intent. (Id. at p. 548.) The only 

evidence was the petition for, proceedings on, and judgment of final distribution, “all of 

which indicate that the trial judge performed an intentional, if erroneous, act. The decree

complied strictly with the prayer of the petition. They both were prepared by the 

executor who was also the trustee prejudicially affected. The decree was approved by the 

attorneys for the other beneficiaries and by the probate commissioner.” (Id. at p. 547.) 

There was no evidence the trial judge intended to make a different decree, other than the 

conclusion he ought to have done so. (Ibid.) “The order made is presumed to be that 

intended in the absence of contrary evidence [citation], and the fact of error alone cannot 

rebut that presumption.” (Id. at p. 548.) Accordingly, the court concluded the claimed 

error was judicial in nature, and was improperly corrected by the trial court. (Ibid.)

As in Eckstrom, in this case there was no testimony from the judge who entered 

the judgment of final distribution regarding his intention when he entered the judgment. 

There was no objection to the terms of the proposed judgment by any party. The 

documents submitted to the court—the petition for final distribution and the judgment of 

final distribution—contained the same provisions and did not indicate any intention to 

have some other judgment entered. There was no evidence the original probate judge 

intended to enter any judgment other than the one actually requested and entered. The 

court hearing the motion to correct clerical error was not free to disregard the original 

judgment or the intention of the judge who entered it, or to enter the judgment it believed 

ought to have been entered in the guise of correcting a clerical error.

When there is no evidence the judge who entered the original judgment intended 

to enter a different judgment, a nunc pro tunc order correcting alleged clerical error is 

improper. In Estate of Steiner (1966) 240 Cal.App.2d 78 (Steiner), the decree of 
11.

distribution ordered that the residue of the decedent’s estate be distributed to Carl Steiner 

for his life and, on his death, to the decedent’s mother, sisters and brothers. (Id. at 

pp. 79–80.) Twenty-seven months later, the executor moved for and obtained a nunc pro 

tunc order for distribution of the residue to Carl Steiner, “‘together with all the rents, 

issues, benefits and income, to do with as he sees fit,’” and upon his death to the same 

specified persons, “‘provided they are living at the time of the death of Carl Steiner.’” 

(Id. at p. 80.) The court noted the provisions, as corrected, appeared in the will and in the 

petition for final distribution. (Id. at pp. 82–83.) There was no explanation for the 

omission of the language from the final decree. The motion to correct the alleged error 

attributed its omission to inadvertence, mistake, and clerical error. (Id. at p. 83.) 

The motion was heard by a judge other than the one who entered the original 

decree. There was no testimony from the judge who entered the original order. (Steiner, 

supra, 240 Cal.App.2d at p. 83.) No evidence was taken, and the ruling was based on the 

record. (Ibid.) The original decree of distribution was in accordance with the prayer of 

the petition. The court concluded the modification of these provisions substantially 

altered the disposition of the residue of the estate, and a nunc pro tunc order could not be 

used for this purpose. (Id. at p. 82.) Further: “It may have been error, but there is 

nothing to justify the conclusion that it was an inadvertent slip, not a mistake of 

judgment, without which an order correcting the final decree, long since final, may not be 

made nunc pro tunc.” (Id. at p. 84.) The court reversed the nunc pro tunc order. (Id. at 

p. 85.)

In Estate of Harris (1962) 200 Cal.App.2d 578 (Harris), the decedent left his 

interest in the Harris properties and the Harris securities to his wife, Beebe, until her 

death or remarriage, and then to his brothers. (Id. at p. 580.) The petition for a decree of 

final distribution alleged that one of the brothers had predeceased decedent, and 

requested that the decedent’s entire interest in the Harris properties and Harris securities 

pass to the surviving brother, John, subject to Beebe’s life estate. The probate court 
12.

granted the petition and ordered the decedent’s interest in the Harris properties and Harris 

securities to be distributed to John, subject to Beebe’s life estate. (Id. at p. 582.) After 

John’s death, Beebe moved for a nunc pro tunc order correcting clerical mistakes in the 

decree of final distribution, allegedly made through the mistake and inadvertence of the 

judge who entered it. (Id. at p. 583.) She contended the judge did not intend to distribute 

all of the decedent’s interest in the Harris properties and Harris securities to John. 

Rather, he intended to distribute to Beebe one-half of the decedent’s interest and a life 

estate in the other one-half, and to distribute a one-half interest to John, subject to 

Beebe’s life estate. (Ibid.) 

The judge who entered the original judgment granted the motion and entered the 

nunc pro tunc judgment, stating that the original order was the result of clerical mistake 

and inadvertence, and was not the decision he intended to render. (Harris, supra, 200 

Cal.App.2d at p. 584.) The appellate court reversed. The petition for final distribution 

alleged that, under the will, because one brother predeceased the decedent, the entire 

interest in the Harris properties and the Harris securities passed to John, subject to 

Beebe’s life estate; there was no dispute about this interpretation of the will at the time 

the petition was heard. (Id. at p. 587.) The decree of final distribution was in accordance 

with that interpretation. The judge who entered the original judgment had “‘no distinct 

recollection of having read the Will prior to signing the Order for Final Distribution [and] 

no recollection of having read the Petition.’” (Ibid.) He “‘intended to sign the Order 

which was placed before’” him, but “‘with the intent ... that it was a correct recitation of 

the matters that should be in there.’” (Id. at pp. 587–588.) He expressed his intent that 

the order conformed to his interpretation of the will, but that, after going over the matter, 

he believed it did not do so. (Id. at p. 588.) He conceded the judgment originally entered 

conformed to what actually happened and reflected the truth of what was done. (Ibid.) 

He could not say with finality that an error was made. (Id. at p. 589.)

The court stated:
13.

“The question here is whether the judge by reason of clerical error or 

inadvertence failed to make a decree that was in accordance with a decision 

that he intended to render at the time of signing the original decree. 

Statements of the judge at the time of the hearing on the motion for the 

nunc pro tunc order are general statements to the effect that he intended to 

sign a decree that was a correct interpretation of the will, but the statements 

do not indicate that at the time of signing the original decree he had in mind 

a specific interpretation of the will which he was then intending to embody 

or record in the decree. Since the statements are to the effect that the judge 

had not read the will or the petition for final distribution prior to hearing the 

petition or prior to signing the original decree, it would seem that at the 

time of signing the decree he did not have in mind an interpretation of the 

will which he failed to embody or record in the decree.

“There is nothing in a minute order, or on the face of the decree, or 

in any phonographic report of any of the proceedings, which indicates there 

was an existing intention, at the time of making the decree, of rendering a

decision wherein the interpretation of the will or the distribution of the 

estate was different from the decree as signed.” (Harris, supra, 200 

Cal.App.2d at pp. 590–591.) 

Although the judge had relied on counsel to prepare a correct decree and had 

signed the original decree without examining it or having any particular interpretation in 

mind, the decree was not a nullity, but the decree of the court. (Harris, supra, 200 

Cal.App.2d at p. 591.) Noting that a judge who entered an order could not set it aside 

simply because he changed his mind, the court found the showing of clerical error 

insufficient to amend the decree nunc pro tunc and reversed the nunc pro tunc order. (Id. 

at p. 592.)

Here, the executor of the will petitioned for final distribution of the estate and 

presented the probate court with a proposed judgment of final distribution. The petition 

and the proposed judgment contained the same provisions for distribution of the estate. 

The judge signed the proposed judgment without change. There was no testimony from 

the original judge at the hearing of the motion to correct clerical error. There was 

nothing in the record, and no evidence presented, to indicate the judge intended to enter 
14.

any judgment other than the one presented to him, which the executor requested he sign 

and to which no one objected. 

In the order after hearing, the probate judge who heard the motion to correct 

clerical error stated: “In this case, there is no evidence the issuing court intended to omit 

the definition of ‘children’ in the Judgment of Final Distribution. The Will, the Petition 

for Probate and the Petition for Final Distribution all contained provisions setting forth 

the legatees. In particular, both the Petition for Probate as well as the Petition for Final 

Distribution specifically name the step children as beneficiaries under the Will.” In 

considering a motion to correct a clerical error nunc pro tunc, however, we must begin 

with a presumption the order entered was the order intended by the judge who entered it. 

(Eckstrom, supra, 54 Cal.2d at p. 548.) Then, we look for any evidence of a contrary 

intent on the part of that judge. There is no evidence in the record that the original judge 

intended to do anything other than enter the judgment submitted by the executor. 

A trial court cannot alter an original judgment to enter a new judgment, based on 

what the trial court now believes should have been entered, in the guise of correcting a 

clerical error. “‘[A]mendment of the record of a judgment, and a nunc pro tunc entry of 

it, may not be made to correct a judicial error involving the merits, or to enlarge the 

judgment as originally rendered, or to supply a judicial omission or an affirmative action 

which should have been, but was not, taken by the court, or to show what the court might 

or should have decided, or intended to decide, as distinguished from what it actually did 

decide, even if such failure is apparently merely an oversight. [¶] The power of the court 

in this regard is to make the journal entry speak the truth by correcting clerical errors and 

omissions, and it does not extend beyond such function.’” (Hamilton, supra, 57 

Cal.App.4th at pp. 890–891, italics omitted.) The evidence relied on by the probate judge 

that heard the motion to correct clerical error was, at best, evidence of what the judgment 

ought to have been, not evidence of what the original judgment was or what the original 

judge intended it to be. The order correcting clerical error adds language to the judgment 
15.

of final distribution that was not included in the original judgment as rendered, without 

any evidence that the trial court intended to make it part of the original judgment, but 

inadvertently omitted it. 

Doane and Remick, which were cited in the order after hearing, are 

distinguishable. In Doane, the beneficiaries of a testamentary trust moved to correct the 

order for preliminary distribution of the decedent’s estate, asserting the order did not 

follow the provisions of the will. (Doane, supra, 62 Cal.2d at p. 69.) At the hearing of 

the motion, the judge who entered the original order testified that he intended to direct 

distribution in accordance with the terms of the will and the order entered did not express 

the decision he intended to make. (Id. at p. 70.) The Supreme Court concluded that, 

because the judge testified he intended to follow the will and the order did not do so, the 

error was clerical, rather than judicial. (Id. at p. 71.)4

In Remick, the decedent’s will left certain property to her husband, for his life, and 

upon his death, the property “‘or the value thereof’” was to be divided among her 

brothers. (Remick, supra, 75 Cal.App.2d at p. 26.) The petition for distribution of the 

decedent’s estate reflected that provision. The decree of distribution made a finding in 

the same language, but in the order for distribution, provided that the property “‘or the 

proceeds thereof’” was to be divided among the brothers. (Ibid.) The trial court granted 

the brothers’ motion to correct that language of the decree nunc pro tunc, on the ground 

the error was a clerical error. (Id. at p. 25.) The original trial court’s minute order 

granted the petition for distribution “‘as prayed for.’” (Id. at p. 29.) This was evidence 

of the decree the trial court intended to make; it intended to order distribution of the 

 

4 The dissent argued the error was judicial. The original order “was precisely the order the 

probate judge ordered entered. No one misconstrued the judge’s order or intent. It was simply a 

case of the trial judge entering an order that followed the precise terms of the petition without 

comparing it with the terms of the will. The court simply failed to interpret correctly the facts. 

Such an error is judicial. The error of the judge cannot be corrected in such a fashion.” (Doane, 

supra, 62 Cal.2d at p. 73.)
16.

property “‘or the value thereof,’” as requested in the petition. Further, the decree itself 

used the term “‘or the value thereof’” in its findings. (Ibid.) The court upheld the 

amendment of the decree, stating: “It therefore appears without question that the 

language used in the distributive portion of the decree did not conform to the will, to the 

prayer of the petition, to the minute order, or to the findings, all of which indicates that 

the use of the words ‘or the proceeds thereof’ instead of ‘or the value thereof’ was 

inadvertent and constituted a clerical error, as the court in its order amending states that it 

did.” (Ibid.) 

Here, there was no testimony of the original judge as to his intent in entering the 

judgment of distribution. There was no minute order or conflicting language in the 

judgment of distribution itself that indicated an intent contrary to that expressed in the 

distributive portion of the judgment of distribution. There was no evidence from which 

the trial court could conclude the judgment of distribution as written did not reflect the 

judgment the original judge actually rendered or intended to render. Consequently, 

substantial evidence does not support the facts on which the trial court’s order correcting 

clerical error was based, and the trial court abused its discretion by entering that order. 

IV. Testator’s Intent

Mary argues the correction of the judgment of distribution was proper because it 

effectuated the testator’s intent and the original judgment did not. When a request is 

made to correct a clerical error in a judgment, the issue is whether the judgment as 

entered reflected the judgment actually rendered by the trial court, not whether the 

judgment effectuated the testator’s intent. 

“A decree of distribution is a judicial construction of the will arrived 

at by the court ascertaining the intent of the testator. [Citations.] Once 

final, the decree supersedes the will [citations] and becomes the conclusive 

determination of the validity, meaning and effect of the will, the trusts 

created therein and the rights of all parties thereunder. [Citations.] 
17.

“If the decree erroneously interprets the intention of the testator it 

must be attacked by appeal and not collaterally.... It is well settled that 

‘where the decree of distribution is contrary to the provisions in the will, 

the decree controls and prevails over the terms of the will with respect to 

the distribution of the property.’” (Estate of Callnon (1969) 70 Cal.2d 150, 

156–157.)

To amend the judgment twenty-two years after it was entered in an attempt to 

conform it to the testator’s intent would be to change the substance of the judgment based 

on what the trial court hearing the matter now believes the trial court ought to have done 

originally. This it cannot do through a nunc pro tunc order purporting to correct a clerical 

error in the judgment. 

DISPOSITION

The April 9, 2015, order after hearing and order correcting clerical error and 

amending judgment nunc pro tunc are reversed. The trial court is directed to enter a new 

order denying Mary’s motion to correct clerical error and amend the judgment nunc pro 

tunc. Cynthia is entitled to her costs on appeal.

_____________________

HILL, P.J.

WE CONCUR:

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LEVY, J.

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GOMES, J.