Reese, Judge. After their mother’s will was probated, William R. Chambers, Jr., filed suit against his sister, Kathy Ann Edwards, in the Superior Court of Gwinnett County, alleging tortious interference with inheritance. The trial court granted Edwards’s motion to dismiss, finding that Chambers was estopped from challenging their mother’s will and raising issues that could have and should have been raised in probate court. Chambers appeals. For the reasons set forth infra, we affirm. As an initial matter, we note that the trial court considered matters outside the pleadings, including orders from the probate court, in granting Edwards’s motion to dismiss. Accordingly, the motion to dismiss was converted into one for summary judgment.[1] Chambers, however, “did not object in the lower court to the conversion of the motion to dismiss into one for summary judgment, and [he] does not challenge or address the conversion on appeal. Thus, any objection to the conversion has been waived.”[2] Construing the evidence in the light most favorable to Chambers,[3] the record shows that his and Edwards’s father died testate in 2011, and their father left his entire estate to their mother. Pursuant to their mother’s 2011 will, which contained a no-contest clause,[4] she left her house to Edwards and equally divided the remainder of her estate between her surviving children. Edwards took care of their mother, who suffered from dementia, until the mother died in October 2019. After their mother’s death, Edwards, acting as executor of her estate, offered the mother’s 2011 will for probate. With no objection filed, the Probate Court of Gwinnett County admitted the mother’s will to probate in December 2019. Following distribution of the estate, Edwards filed a petition for discharge in probate court. On November 23, 2020, Chambers filed a caveat and counterclaim for damages to the petition for discharge. However, the probate court dismissed the caveat and counterclaim as untimely,[5] granted the petition for discharge, and discharged Edwards “from office and all liability.” Six months later, Chambers filed the instant action in the trial court, alleging that Edwards tortiously interfered with his inheritance by physically and verbally abusing their mother and interfering with their mother’s estate plans “through fraud, duress, undue influence, control, and theft by conversion[.]” Specifically, Chambers alleged that their father had acquired several hundreds of thousands of dollars cash during the father’s lifetime and the father intended to distribute the cash to all of his heirs but, during their mother’s lifetime, Edwards found the cash, took it from their mother, and used it for Edwards’s own purposes. Chambers also alleged that he “ expected” their mother’s house to be shared jointly among the mother’s surviving children, but instead it was gifted to Edwards, who sold the house and kept the proceeds. Edwards filed a motion to dismiss on several grounds, including res judicata, and attached, inter alia, their mother’s will and the probate court order discharging her from office. Chambers responded. The trial court granted Edwards’s motion to dismiss, finding that Chambers was estopped from litigating issues decided in the probate action because he actually accepted an inheritance under the will. Furthermore, the trial court determined that any claim Chambers had as to his expected inheritance of their father’s cash would lie against their mother, not Edwards, and any claim that Edwards failed to account for that cash could have and should have been raised in the probate court, and because Chambers had objected to Edwards’s discharge on the same basis, he was estopped from re-litigating the matter. This appeal follows.[6] Summary judgment is proper if “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.”[7] We review a trial court’s grant of summary judgment de novo.[8] With these guiding principles in mind, we turn now to Chambers’s specific claims of error. 1. Chambers contends that the trial court erred in finding that he was precluded from attacking their mother’s will on the basis of undue influence because he accepted his inheritance from the will during the administration of her estate. “A beneficiary taking under a will shall allow all the provisions of the will to be executed as far as the beneficiary can. A beneficiary who has a claim adverse to the will shall be required to elect whether to claim under the will or against it.”[9] Chambers argues that at the time he accepted his inheritance under the will, he was unaware of the extent of Edwards’s undue influence. But all of Chambers’s allegations of tortious interference via fraud, duress, undue influence, control, and theft by conversion pre-date their mother’s death. Moreover, the contents of the will, including the fact that their mother left her house to Edwards, would have been known to Chambers during probate. Accordingly, it appears that Chambers took his inheritance with “full knowledge” of the facts, and he cannot now make a claim against the will.[10] Moreover, a judgment discharging an executor relieves her from liability “until such judgment is set aside.”[11] Here, there is no indication that the probate court’s order discharging Edwards as the executor of their mother’s estate and releasing her from liability has been set aside. 2. Chambers also contends that the trial court erred in ruling that any tortious interference claim regarding his expected inheritance of their father’s cash would lie against their mother, not Edwards, and in finding that his claim that Edwards failed to account for the cash during the administration of their mother’s estate was barred by estoppel or res judicata. “[T]o establish a claim for tortious interference with a gift under Georgia law, a plaintiff must show that the donor took steps toward perfecting the gift; that the defendant engaged in fraudulent and malicious conduct to divert the perfection of the gift; and that the defendant diverted the gift away from the plaintiff to himself.”[12] Here, Chambers alleged that Edwards interfered with their mother’s plans for inheritance by taking for herself hundreds of thousands of dollars in cash left by their father to their mother. But even assuming Chambers’s allegation as to their father’s intent to divide the cash among the father’s heirs could state a claim for tortious interference with their mother’s estate, Chambers has not shown that the trial court erred in finding this claim barred by res judicata. OCGA § 91240, the codification of Georgia’s common law rule of res judicata,[13] provides: “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.”[14] Before res judicata applies, three prerequisites must be satisfied: “(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.”[15] The purpose of res judicata “is to prevent the relitigation of claims which have already been adjudicated, or which could have been adjudicated[.]“[16] “Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.”[17] Citing Morrison v. Morrison,[18] Chambers argues that the causes of action raised by his caveat and counterclaim in probate court and by his claim for tortious interference with inheritance are not identical. For res judicata purposes, the “cause of action” is “the entire set of facts which give rise to an enforceable claim[,] with special attention given to the ‘wrong’ alleged.”[19] “The general rule is that the burden is on the complaining party to perfect the record for appeal.”[20] Here, the caveat and counterclaim are not part of the record on appeal. Without the caveat and counterclaim before us, it is impossible to evaluate Chambers’s claim that res judicata does not apply.[21] As Chambers has not carried his burden of demonstrating error, we must affirm.[22] Chambers also argues that res judicata and estoppel do not apply because he was not a party to the sale of their mother’s house. But res judicata and estoppel require an identity of the parties to the causes of action, not that Chambers have been a party to the sale. Once again, without the caveat and counterclaim before the Court, it is impossible to evaluate Chambers’s claim, and he has not met his burden of showing error. Lastly, Chambers argues that the probate court did not issue a ruling on the merits of his claims against Edwards because his caveat and counterclaim were dismissed.[23] This argument is not persuasive. For purposes of res judicata, “[i]f, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid.”[24] If Chambers “had properly presented and managed” his case by filing a timely counterclaim and caveat, the probate court could have considered his objections on the merits.[25] Both v. Frantz,[26] upon which Chambers relies, is distinguishable. In that case, we held that a wife’s voluntary dismissal of her caveat to the petition to probate her husband’s will could not serve as a basis for res judicata or collateral estoppel because the voluntary dismissal of an action is not a judgment on the merits.[27] Here, Chambers did not voluntarily dismiss his caveat without prejudice; the probate court dismissed his caveat and counterclaim because they were not timely and, furthermore, discharged Edwards and released her from liability.[28] Thus, it appears that the probate court’s ruling was an adjudication on the merits, as required for res judicata.[29] Judgment affirmed. Doyle, P. J., and Senior Appellate Judge Herbert E. Phipps concur.
