Fossett's wife to testify in death petition case

CHICAGO -- Adventurer Steve Fossett's wife must take the witness stand before the missing millionaire can be legally presumed dead, a judge said Wednesday.

Fossett, 63, renowned for his transglobal balloon flights and other colorful exploits, vanished last September after taking off for a pleasure flight in a light plane from a small airstrip near Yerington, Nev.

Judge Jeffrey A. Malak told Peggy Fossett's attorneys, however, that he wants to hear testimony from her as well as some of the people who have searched for her husband before he rules on a request that Steve Fossett be legally presumed dead.

A long search found no trace of Fossett in the rugged Nevada terrain. Malak noted the National Transportation Safety Board already has issued a preliminary conclusion Fossett was killed in a fatal crash.

"This is the first step in the orderly administration of the estate," one of Peggy Fossett's attorneys, Michael LoVallo, said after Wednesday's hearing. He described the effort to locate Fossett and his plane as "probably the most comprehensive search that we know of that has ever occurred."

Peggy Fossett wants an order declaring her husband is presumed dead so she can transfer his estate, which contains substantial assets, into a trust. Fossett made millions of dollars trading futures and options on Chicago exchanges.

But Malak said issuing the order requires making an exception to state law that someone must be missing for seven years before he can be presumed dead. Malak said testimony he has requested might provide him with the substantiation he needs to make such a ruling, which he called "the fisherman's exception."

The veteran probate judge said he had made such an exception twice before and was sorry about it in one of those cases.

In the first case, he declared a man who set out to row a boat from the East Coast to Europe presumed dead. He said the man was spotted 300 miles off the coast of Ireland just before a major storm hit.

The man never was seen again. He said he coined the phrase "the fisherman's exception" in that case.

In the other case, Malak said, he declared a man presumed dead only to have a sheepish attorney appear before a few months later.

"He said, 'Judge, we have a problem,"' Malak said. "I said, 'What's the problem?' He said, 'We found him."'

"Somewhere in the clerk's office there is an order I signed declaring someone legally alive," Malak chortled. He said attached to the order was a copy of a petition for divorce.

Malak told the attorneys to come back Tuesday at which time a date will be set for Peggy Fossett to testify.