[WSBAPT] Correcting a Name?

[Eric Nelsen]

Yes, absolutely. It’s a typographic error and I have had this problem before. My motion just notes the error and the bank’s refusal to open an account without getting the name in the order corrected, and I request re-issuance of the order with the correct name. No substantive change in the relief granted. I think no notice is required to anybody; it would be an ex parte submission by the PR.

The basis is CR 60 and nunc pro tunc rules. Briefing:

Correction of Clerical Error Allowed Under CR 60(a).
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.
CR 60(a) (emphasis added). "A trial court's inadvertence in failing to memorialize part of its decision does not alter or amend the judgment. Rather, it is a clerical error of omission correctable under CR 60(a)." Marriage of Stern, 68 Wn. App. 922, 927, 846 P.2d 1387 (1993) (citation omitted; emphasis added).
                Allowed at Any Time. A clerical error "may be corrected by the court at any time..." CR 60(a) (emphasis added). The one-year limit under RCW 4.72.020 is superseded by CR 60, because "[p]rocedural rules adopted by the Supreme Court control and supersede legislative acts." State v. Scott, 92 Wn.2d 209, 212, 595 P.2d 549 (1979). Further, delay is no defense to the correction of a clerical error, at least in the absence of a showing of prejudice. Callihan v. Dept. of Labor and Industries, 10 Wn.App. 153, 157, 516 P.2d 1073 (1973). Here, the clerical error may be corrected at any time.
                Notice Not Required Except At Court's Discretion. No notice is required, but the Court may require "such notice, if any, as the court orders." CR 60(a). Here, no notice should be required. The requested correction does no more than flip the mistaken designations of “debtor” and “creditor” in the judgment index.
                Correction Relates Back to Time of Judgment, Nunc Pro Tunc. A nunc pro tunc (Lat., "now for then") order allows a court to date a record reflecting its action back to the time the action in fact occurred. A nunc pro tunc order is used to correct clerical or ministerial errors that have caused the record to not properly reflect the intention of the court at the time the original order was entered. State v. Hendrickson, 165 Wn.2d 474, 478-479, 198 P.3d 1029 (2009).  It would be an abuse of discretion for the court to change an order nunc pro tunc in order to change its mind or rectify a mistake of law. But if it is simply a ministerial error, correction of the record to reflect the true facts is appropriate. Id.


Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Brent Williams-Ruth
Sent: Wednesday, May 18, 2022 8:58 AM
To: WSBA Probate & Trust Listserv <WSBAPT at lists.wsbarppt.com>
Subject: [WSBAPT] Correcting a Name?

Greetings List Members -

Way way back, many centuries ago...not long after the Bible began (ok, it hasn't been quite that bad....) but at the VERY start of a probate, a name was given to me that had an extra letter added to it. No one caught this error until the legal guardian attempted to open a blocked account and the financial institution said - nope, we need the order to be corrected with the real name.

I have a birth certificate illustrating true name.

Question relates to process - I am thinking a very simple "motion to modify" that could be submitted to ex parte with everyone's agreement that simply advises the Court of the error, shows the appropriate name now, and that should be it. Right?

Appreciate input!

Thank you,

Brent Williams-Ruth (pronouns: he/him)
Attorney-At-Law

Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC

Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003

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